R. v. Francis Kioko E. A. C. A. Crim. App. 120-D-1971; 14/12/71

R. v. Francis Kioko E. A. C. A. Crim. App. 120-D-1971; 14/12/71;

            Duffus P., Lutta and Mustafa J. J. A.

            (Judgment of the Court

The respondent Francis Kioko was charged in the Resident Magistrates Court with 21 counts of unlawful possession of Government trophies c/s 49 and 53 of Cap. 302, on count of obtaining by false pretenses c/s 309 of the Penal Code, one count of uttering an exhausted document c/s 343 of he Penal Code, one count of uttering a false document c/s 342 of the Penal Code and one count of failing to make returns by trophy dealer c/s 39 (1) of Cap. 302. He was convicted on 11 counts of unlawful possession of Government trophies and the counts of obtaining by false pretenses, of uttering an exhausted document and of uttering a false document. He was acquitted on all other counts. He appealed to the High Court in Arusha which quashed his convictions and set aside the sentences. It did so primarily on the ground that the magistrate had relied on inadmissible hearsay evidence. On the counts of unlawful possession of government trophies, the judge held that it was on the prosecution to prove that the accused acquired possession of the skins and trophies unlawfully (relying on s. 114of the Evidence Act). “All that it is necessary for the defence to establish is that its story is more likely to be true.” [See (1971) H. C. D. 307]. The Republic appealed to the court of appeal for East for Africa

Held: (1) “the learned judge held that the trial magistrate’s conviction of Francis [respondent] on the 11 counts of unlawful possession was based on inadmissible evidence and quashed the conviction thereon. We have already referred to section 49 of cap. 302 rub-section 2 of which reads; “in any proceedings against any person for an offence under this section the onus of proving lawful possession or dealing shall be upon such person”. In our view the learned judge was wrong to apply section 144 of the Evidence Act when there is specific provision in a statute putting the burden of proof on an accused, see Ali Ahmed Saleh Angara v. R. (1959) E. A. 654 at 658. Francis had to prove his innocence on a balance of probabilities, not merely “to establish that its story is more likely to be true”. Mr. King for the Republic has referred to Sec. 3(2) of the Evidence act which reads: - A fact is said to be proved when:- “(a) in criminal matters except where otherwise provided by Statute or other law, the Court believes it to exist beyond reasonable doubt”; and suggested that Francis, in view of this rather unusual provision would have to prove his innocence beyond reasonable doubt. There is overwhelming authority for saying that where the onus is cast on an accused, as here, the test to be applied is on a balance of probabilities. We do not know whether Sec. 3(2) of the Evidence Act has made any change to this well-established and long standing principle; in any case we did not have full arguments on it. We will not pursue this matter but will only say that we will need clear legislative enactment to depart from such a well-established and time honoured principle. We will, for the purpose of this appeal,

continue to apply the test of a balance of probabilities in so far as Francis is concerned”. (2) “We now come to the evidence given by PW 2 Silas about David Kiamba not being a registered trophy dealer in Kenya. PW 2 Silas in his duties as an investigation officer checked through the records at the Game Headquarters in Nairobi and failed to find the name David Kiamba registered as a trophy dealer in Kenya. The learned judge held that the evidence of PW 2 Silas was secondary evidence and thus inadmissible. He presumably was of the view that the original records should have been produced. The provisions of Sec. 67 (1) (a) (ii) and (g) of the Evidence act read:- “(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases: (a) when the original is shown or appears to be in the possession or power of (ii) a person out of the reach of, or not subject to, the process of the Court; (g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved in the general result of the whole collection.” Section 67 (5) reads:- “In the case mentioned in paragraph (g) of sub-section (1) evidence may be given as to the general result of the accounts or documents by any person who has examined them and who is skilled in the examination of  such accounts or documents.” There was evidence that the records wee kept at the Game Headquarter in Nairobi, Kenya. The Court in Tanzania would not have jurisdiction to serve process on the person in charge of such records to produce them in Tanzania. There was also evidence that there wee over 300 registered trophy dealers in Kenya and that hundreds of export permits were issued. The original documents and records would have been many and voluminous and could not have been conveniently examined in Court. PW. 2 Silas was the person who examined them and was skilled in such examination. The fact to be proved was the result of such examination. In such an event secondary evidence would be admissible, see J. B. M. D’ Sa v. R. (1957) E. A. 627, at 629. It is true the Republic should have, prior to adducing this secondary evidence, laid the formal foundation for it. But this omission was not necessarily fatal the trial magistrate must have the provisions of Sec. 67 in mid when he admitted this evidence. In any event counsel for Francis had not objected to this secondary evidence going in. We agree that in a criminal case there can be no acquiescence consent on the part of an accused person. But in considering whether to apply the provisions of Sec. 346 of the Criminal Procedure Code, the absence of any objection by the defence is a relevant factor.” (3) “In any event, in his case, were think that the learned judge should have applied the provisions of Sec. 346 of the Criminal Procedure Code as there was no failure of justice. He should have held that there was admissible was thus a good deal of evidence to show that Francis could not have received the export permits from David as he had alleged, and that the export permits, on the basis of which Francis could not have received the export permits from David as he had alleged, and that the export permits, on the basis of which Francis obtained the certificates of ownership, could not have been genuine. In on a balance of probabilities, to prove otherwise. This he had failed to do. In our view the conviction of Francis on the 11    

counts of unlawful possession by the trial magistrate in the circumstances were justified.” (5) “In so far as the offences under the Fauna Conservation Ordinance Cap. 302 were concerned; the onus was on Francis to prove, on a balance of probabilities, that he had lawful possession. In respect of the offence under the Penal Code, it was for the prosecution to prove its case beyond reasonable doubt.” (6) “The trial magistrate also referred to the evidence of PW. 6 Henry who testified that from his examination of the records in his office at Nairobi he found that Export Permit Book Np. 138351 to 138400 was issued to Francis Kioko on 15.3.67. The trial magistrate accepted this evidence as true. The learned judge held that this evidence of PW. 6 Henry was secondary evidence and inadmissible. We are of the opinion that this evidence of PW. 6 Henry was admissible under Sec. 67 (1) (a) (ii) and (g) of the Evidence Act for the same reasons as we have given in connection with the evidence of PW. 2 Silas about Francis not being registered as a trophy dealer in Kenya.” (7) “There was therefore evidence that Export permit No. 138368 was issued to Francis Kioko. There was also evidence that this Export Permit was in the Physical possession of Francis who produced it before the Arusha Game Division Office and obtained a certificate of ownership ………….” There was sufficient evidence to convict Francis on count 22 (obtaining a certificate b false pretences), without recourse to any finding under the Fauna Conservation Ordinance.

[Editor’s note: This case reversed the judgment in Kioko v. R. reported in this Digest as [1971] H. C. D. 307, on all counts except uttering a false document c/s 342 of the Penal Code].