Juma Alibax Said v. R., Crim. App. 132-A-67, 9/10/67, Platt J.

Juma Alibax Said v. R., Crim. App. 132-A-67, 9/10/67, Platt J.

Accused was charged and convicted of one count of unlawful importation of Government trophies contrary to section 40(5), (6), (7) and (8) of the Fauna Conservation Ordinance and a second count of unlawful possession of Government trophies contrary to section 49 and 53 of the Ordinance. There was evidence that accused took delivery in Arusha of 15 boxes of what appeared to be personal effects which had been shipped from Uganda. He consigned them to an exporter for shipment to Dar es Salaam and transshipment to Aden, describing the contents as wood carvings, However, before they were shipped, they were opened by the police in the presence of accused. At the trial accused stated that when the box was opened, “I was surprised to see rhino horns.” The boxes were not produced as an exhibit, but were inspected by the magistrate. At the trial, a police inspector testified that the value of the horns was Shs. 150,000/- Photographs of the contents of the boxes were introduced into evidence, but he photographer was not identified  or called as a witness.

            Held: (1) Subsections (5) and (6) of section 40 deal respectively with importation from countries which are and are not parties to the 1933 convention, and the subsections should not have both been specified in the charge. (2) Subsection (7) constitutes a separate offence and should not have been joined with subsections (5) or (6) in a single count. There is “some doubt” whether the defect is curable on appeal. (3) “Import” as used in the Fauna Conservation Ordinance means to bring goods or cause goods to be brought into Tanganyika by sea air or land.[Citing Imports Control Ordinance, Cap 292; distinguishing Sheikh Abdulla Ali Hakimi v. R., (1953) 20 E. A. C. A. 329] (4) An element in the offence of unlawful importation and unlawful possession is the knowledge of the nature of the goods in question. (5)An insufficient chain of evidence was presented to show that the goods which the magistrate inspected were the same as those seized from accused. (6) An officer of the Game Department should have testified that the goods were in fact rhinocerous horns.(7) However, the admission by accused at the trial that the boxes contained rhinocerous  horns cured the defects in the evidence as to the identity of the boxes and nature of their contents. (8) The testimony by the inspector as to the value of the horns was inadmissible; an expert should have testified as to this matter. (9) A proper foundation was not laid for the admission of the photographs and they were inadmissible. As a general rule the person taking the photographs should produce them after having explained the process by which they were manufactured. (10) If accused had known that the boxes contained the horns, the onus would then have been of him to prove that the possession was lawful. (11) An appellate court is in as good a position as the trial court to draw inferences from circumstantial evidence. Convictions quashed for insufficient evidence.