Amon v. R. Crim. App. 53-A-70; 19/6/70; Bramble, J.

Amon v. R. Crim. App. 53-A-70; 19/6/70; Bramble, J.

The appellant was convicted of shop breaking and stealing c/ss 296 and 265 of the Penal Code. at about 3.15 a.m. one morning a watchman heard as though a glass window was being broken and he raised alarm; another watchman from neighboring premises hastened to the spot and saw 5 persons running in different directions, one of whom was running towards where he was; he told him to stop and when he failed to do so he struck him twice on his head with stick, but the person escaped. By following the blood stains they found the appellant with fresh injuries on his head. The appellant’s story testified by a prosecution witness – appellant’s relative, was that on the night of the incident he had attended a dance and as he had to go on safari the following morning he decided to go to his relative. While he was passing in a path where he was stopped by an unidentified man and he refused whereupon the man struck him on he fell down. He managed to escape and went to his relative, who gave him a change of clothes; the latter suggested that they should make a report to the police and while they were on the way they met the police and he was arrested. It was established beyond doubt that the appellant was the person to whom the watchman referred and the only question was whether he was a party to the breaking. On this point the trial magistrate held that:- “It is clear that none of the prosecution’s witnesses testified as to the accused’s identify at the time the offence was committee, but the over-all evidence particularly the clothes ….. Irresistibly connects the accuses with the said crime. The accused in his defence …… said that he was attacked by an unknown man for an unknown reason. This I am unable to accept as truthful.”

            Held: (1) “The only irresistible conclusion that could be drawn from the clothes found is …… that the appellant was the person whom (the watchman) had attacked. The evidence should then have been examined to see whether there was anything connecting the appellant with the crime. If the prosecution’s case is believed he was seen running away from the scene together with four other men. At its highest there was very suspicion but

   A person cannot be convicted of crime on suspicion alone. Presence in the neighborhood of crime does not necessarily make a person a party. It must be proved that he took part in the execution of it by some overt act or that by his words or behaviour identified himself with the perpetrators, that he had a common intention with them. There was no evidence to support any of these facts.” (2) “The defence ought to have been carefully examined. It is not enough to say “I am unable to accept it as truthful.” Some reasons must be given as to why it was rejected so that an appellant court can say whether or not the conclusion is justified from the evidence. As I see it, the appellant’s story could possibly be trued and as such it should have raised a reasonable doubt.” (3) Appeal allowed conviction quashed.