Ngau v. R. Crim. App. 39-A-71; 4/5/71; Kwikima Ag. J.

Ngau v. R. Crim. App. 39-A-71; 4/5/71; Kwikima Ag. J.

            The appellant was convicted of burglary and theft. A house belonging to one Edna Leonard was broken into on night of 16/17 May 1970. A blanket and a radio were stolen among other things only to be found in the possession of the appellant a month later. The complainant Edna identified the radio because her name was scratched on it and the blanket from the spot where it was burnt but only after she had been shown the blanket at the police station and presumably had studied it an committed to memory any special marks it had. The appellant testified under oath that the blanket was his own but the trial magistrate did not consider this evidence. The case depended upon the doctrine of recent possession and the main issue was whether the appellant had received the property innocently.

                        Held: (1) “The accused persons are only held culpable if hey fail to explain to the satisfaction of the court that their possession of the articles proven to have been recently stolen in innocent and lawful. In this case the blanket was claimed by one of the appellants to be his property. The complainant purported to give her identification mark after being shown the disputed blanket at the police station when she had opportunity to study it and commit to memory any special marks it would have. It is therefore unsafe to hold that the disputed blanket was conclusively Edna’s property stolen in the course of the burglary at her house.” (2) “The trial court ought to have investigated that his [appellants] claim that the blanket was his property. The judgment reveals that the appellant’s evidence given on oath was not even considered by the learned trial magistrate. This occasioned a failure of justice as a court should judge a case according to all evidence before it and not only according to the evidence of the prosecution.” [See William v. R. 1970 H. C. D. 176] (3) Appeal allowed.