Gasper Melkior v. R. (P. C.) Crim. App. 216-A-71; 11/8/71; Bramble, J.

Gasper Melkior v. R. (P. C.) Crim. App. 216-A-71; 11/8/71; Bramble, J.

Appeal was against conviction and sentence on two charges of breaking into a bar with intent to commit a felony there in i. e. to steal contrary Section 294 (1) and stealing contrary to Section 205 of the Penal Code. The complainant alleged that he lost money, and other property including a mattress and pombe between 14 and 15 June, 1970. On 29^th September, 1970 a mattress was found at the home of the appellant and was identified by the complainant by a spot of blood and two stamps at the corners. This was the only evidence tendered by the prosecution to implicate the appellant who testified that the mattress was one he bought in 1966 and called a witness in support. The appellant tried to explain the spot on the mattress by saying that his wife from whom he was separated gave birth to a child on it and so spoiled it. The wife denied this …… whereupon the trial magistrate concluded that the appellant did not prove ownership and consequently he stole it.

            Held: (1) “All that the appellant had to do was to raise reasonable doubt. The only real identifying mark was the spot of blood since all mattresses of the same make will have stamps on them.” (2) “The only ground on which the appellant could be convicted of the offences was on the basis of the doctrine of recent possession. Basically it is that if a person is found in possession of goods recently stolen he can be presumed to be the thief or the receiver. What is recent possession depends on the nature of the goods. A mattress can easily pass from hand to hand and I am prepared to concede that in this case a period of 3¹/₂ months is good enough to invoke the doctrine. Since, however, the appellant gave a story of having bought the mattress and this could reasonably be true he satisfied the burden cast on him. The trial magistrate did not direct himself on the law and I cannot say that he must necessarily have come to the same conclusion had he done so.” (3) Appeal allowed.