James s/o Selemani v. R., Crim. App. 97-D-1969, 12/7/69, Duff J.

James s/o Selemani v. R., Crim. App. 97-D-1969, 12/7/69, Duff J.

The accused was convicted of attempting to break into a building c/s 297 and 381 of the Penal Code and was sentenced to two years’ imprisonment, he being said to have twelve previous and presumably relevant convictions. The charge actually preferred was one of breaking into a building c/s 297 of the Code, the learned magistrate holding that only an attempt had been established. Two persons were apprehended while trying to force out or open a post office stamp – vending machine which was inserted in the wall and which was afterwards found to be badly damaged. The accused before being caught threw away a tyre lever while an iron block or bar was discarded by either him or his companion.

Held: “From the evidence of the post office official (P.W. 2) it appears that the accused and his companion were trying to pull out the vending machine or break it open so that they could steal the money or stamps or both. Can it be concluded from this that there was an intention to break into or enter the building? Can it be said that there was a breaking or an attempted breaking of the building? The only case I could find which appeared to be

relevant is that of R. v. Paine and Cooper which is referred to in the 35^th edition of Archbold in paragraph 1802. In that case a shutter-box projected from a house, and adjoining one side of a shop –window, which side was protected by wooden paneling, line and with iron; a breaking and entering of the shutter-box was held not to constitute burglary. Applying that decision to the present case I do not think that the interference with the stamp vending machine did amount to an attempted breaking as found by the learned magistrate and the conviction entered by him cannot be sustained.” (2) “There is, however, clear evidence, which was accepted in the lower court, which established that the accused and his companion were in possession of house-breaking instruments, an offence c/s 298 (c) of the Penal Code being involved. Having regard to the judgment in R. v. Patterson (1962) 2 Q. B 429 it is not necessary that the prosecution must establish that an accused person intended to use the instrument for house-breaking. All the prosecution has to prove is that an accused was found in possession by night of a house-breaking instrument or of an implement capable in fact of being used as a house-breaking implement, the burden then shifting to the defence to prove, on the balance of probabilities, that there was lawful excuse for the possession of the instruments at the time and place in question. Bearing in mind these principles I propose to invoke Section 186 of the Criminal Procedure Code and the accused is now convicted of an offence contrary to section 298 (c) of the Penal Code, the conviction of attempted breaking c/s 297 and 381 of the Code being set aside.” Appeal dismissed.