R. v. Stanslaus s/o Barnaba, Crim. Rev. 3-M-72; 16/8/72.

R. v. Stanslaus s/o Barnaba, Crim. Rev. 3-M-72; 16/8/72.

            JONATHAN, AG. J. – The accused was convicted on his own plea of being in unlawful possession of Government strokes contrary to section 312 A (2) (as it then was) of the Penal Code and given an absolute discharge under section 38(1) of the Code. The charge alleged that he was found in possession of various items of clothing marked “National Service” which were Government stores and which were reasonably suspected of having been stolen or unlawfully obtained. To this the accused told the court that he was found in possession of the items, but that he had got them form his brother who was employed by the National Service. This was then recorded as a plea of guilt the facts as then outlined by the prosecution and admitted by the accused were that the items were property of the National Service, for use by members of that institution only.

            Taking the charge as it stood, it is quite clear that the plea of accused was not unequivocally one of guilty. He admitted possession but gave an account of how he had come b the things. It was, therefore, a triable issue whether the possession was unlawful and the magistrate should have recorded the plea as one of not guilty.

            The charge was itself bad, for the particulars were at variance with the statement of offence. Although the particulars stated that the items were Government stores, they could not, in law, be so regarded for the same particulars made it clear that the items were marked “National Service”.

National Service property is property of that institution and cannot at the same time be said to be Government stores, for property of the National Service, public though it is, is not also property of Government.

            At the hearing of this matter the learned Senior State Attorney drew my attention to the provisions of section 22 of the National Service Act and suggested that the accused should have been charged there under. With this I respectfully agree. [The court then quoted this section and continued]. These provisions are the same as those of section 312 A (2) of the Penal Code in so far as the giving of a satisfactory account is concerned. In the case under consideration, the accused said he got the items found in his possession from he brother who was a member of the service. It follows, therefore, that, even if the accused had been charged under the Act, as he should have been, his plea should still have been recorded as on of not guilty.

            For the foregoing reasons, I would hold the plea was wrongly recorded and the conviction bad. I accordingly quash the conviction and set aside the order of absolute discharge. In the circumstances of the case I would consider it appropriate to order plea to be taken afresh.