Magabe Kisand v. R. Crim. App. 835-M-66; 24/1/67; Platt. J.

Magabe Kisand v. R. Crim. App. 835-M-66; 24/1/67; Platt. J.  

The accused was convicted of receiving stolen cattle upon that the cattle were found in a boma which he shared with his son three days after they were stolen. His defence was that the cattle had been brought to the boma by his son, that he had not been present when they were brought, and that he did not know they were stolen. The magistrate stated that the accused had the burden “to bring at least some evidence which may bring a balance of probability” and that his unsubstantiated testimony was insufficient to do so.

            Held; A presumption that the accused was either a thief or receiver arose from the prosecution evidence of recent possession. However, the testimony of the accused, if reliable, was sufficient to rebut this presumption. The standard of reliability to be applied is not whether the magistrate believes the defence to be true; rather, the test is whether the defence could reasonably be true based upon the evidence in the record.