William v. R. Crim. App. 253-A-69; 7/3/70; Platt J.

 

William v. R. Crim. App. 253-A-69; 7/3/70; Platt J.

The appellant was convicted of burglary and theft. A building belonging to Ali Kavaria was broken into and some clothing stolen. Three days later the stolen property was found in the appellant’s possession. The case depended upon the doctrine of recent possession and the main issue at the trial as on this appeal was whether the appellant had received the property innocently. The learned Magistrate rejected the defence. The appellant stated

that on certain day in the morning (in fact the day following the breaking and theft) two men brought him a bundle of clothes saying that it belonged to his brother-in-law. Later he went to the market and saw his brother-in-law; but the latter did not come home with him. Nor did any other person. Then three days later he was found with the property. It turned out that the bundle contained the stolen property of several people including Ali Kavaria. This was confirmed by a defence witness. But some of he persons alleged to have brought the property to the appellant were called. It was alleged however when first taken to the Primary Court of Ugweno other men were called but were release later. There was no evidence against them of course except what the appellant related.

            Held: (1) “It is true as the petition points out that the test is whether the appellant’s story could reasonably be true, whether or not it convinces the trial court. The learned Magistrate reasonably directed himself on the whole as to the principle involved. The argument is that he did not follow the principle in applying it to the facts. There was a good deal said about the principles of logic and the impression is clear that he learned Magistrate did not believe the defence. It was one which could be easily made up; it was possible that the persons who brought the articles could have been imagined. All this is true. But the test is whether the defence could have been reasonably true as well. If one reflects on the mode of proof – mere possession – it is clear that an accused may come into possession in a number of ways. If the appellant had named other people in the Primary Court could he have considered that he was holding property lawfully? Why then were these people not called by the prosecution to disprove the apparent defence. It is usual in cases of recent possession for the prosecution not to run the risk of relying merely on possession which can easily be defended. Normally the prosecution takes a first statement, if make, at face value and follows it up. If it proves false then the case is usually faultless. This was not done in this case, and all that remains is the possibility that the appellant was holding a bundle of clothes for his brother-in-law. A family member may often leave articles with another relative. Does if prove the holder’s complicity? It is possibly a silly story but it cannot be said to be unreasonable without other proof. In my view I consider that the petition does raise a valid point that the learned Magistrate did not apply the principle impartially to the facts.” (2) Appeal allowed.