This appeal is against the conviction of the appellant on the 16th July, 1945, in the Supreme Court of this Colony for an offence against Regulation 26A of the Defence (Amendment) (No. 10) Regulations, 1942, (Public Notice No. 167 of 1942).
The particulars of the offence set out in the information are:- “ELIAS ABRAHAM BAMIN on the 12th day of April. 1945, at Wilber- force in the Colony of Sierra Leone had in his possession one Bedford Lorry No. L519192 the property of His Majesty the King reasonably suspected of having been stolen.”
There were four grounds of appeal against the conviction. The first was that the judgment was contrary to law in several particulars. This ground was abandoned except as regards the last particular, that the trial was a nullity, and that was disposed of in our ruling which was given on Friday, the 29th March. The second ground is that ..the judgment was against the weight of evidence”. The third ground, “misperception of evidence”, was abandoned. The fourth is “misdirection and non-direction”. and it will be more convenient to deal first of all with this ground, as did Mr. Claude Wright in his argument on behalf of the appellant.
There are twelve particulars of misdirection and non-direction. We will deal first with grounds 4 (a) and (1) which are as follows:-
“4. MISDIRECTION AND NON-DIRECTION “(a) The learned trial judge misdirected himself and the Assessors as to the quantum of proof required for the prosecution to discharge the burden of proof resting upon them leaving it to appear that the quantum of proof is the same as in civil cases. * * * “(1) The learned trial judge failed to direct himself and the Assessors that if the accused gave a reasonable account of how he came by Exhibit ‘C’ he should not be considered guilty of the charge.”
The Regulation under which the charge was laid makes guilty of an offence any person who shall be brought before a Court charged with having in his possession any property of His Majesty reasonably suspected of having been stolen or unlawfully obtained “and who shall not give an account to the satisfaction of such Court of how he came by the same “.
Mr. Wright cited to us several cases, including Woolmington’s case (1), R. v. Sanders (2), R. v. Ward (3), and R. v. Carr. Braint (4), as well as Schama’s case (5). He contended that the onus upon the appellant in this case was similar to that placed upon a person charged with receiving stolen property in a case to which the doctrine of recent possession applied.
The learned trial judge gave his direction to the Assessors in the following phrases:- “In coming to your conclusion you must remember this, that the onus of proving that the accused was in fact in unlawful possession of L.519192 on the date in question-the 12th April-and that it was reasonably suspected that the lorry had been stolen is upon the prosecution and they must prove it beyond reasonable doubt. If you are satisfied about that, the burden of proof shifts to the accused to give you a satisfactory explanation of how he came by chat lorry. Now, he has not got to satisfy you beyond all reasonable doubt, but he has to give you an explanation which as a reasonable individual, you think is satisfactory. The burden of proof upon him, is not as great as the burden of proof on the prosecution to establish the unlawful possession. If you are satisfied with the accused's explanation then, of course, that is the end of the case you must acquit him.”
In Rex v. Woolmington (1), Lord Sankey in his judgment defined the position as to burden of proof at Common Law. Five years later the Court of Criminal Appeal in Rex v. Carr. Braint (4) interpreted the meaning of section 2 of the Prevention of Corruption Act, 1916, which provides that a consideration shall be deemed to be given corruptly unless the contrary is proved. After considering various authorities including Rex v. Woolmington (1), the Court referred to the” elementary proposition” that in civil cases the preponderance of probability may constitute sufficient ground for a verdict. It then proceeded to decide the issue before it in the following terms :-
“In our judgment, in any case where, either by statute or at common law, some matter is presumed against an accused person unless the contrary is proved, the jury should be directed that it is for them to decide whether the contrary is proved; that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt; and that the burden may be discharged by evidence (Page 10)
satisfying the jury of the probability of that which the accused is called upon to establish.”
In our opinion this statement applies to Regulation 26A in so far as in given circumstances it places upon the defendant the onus of giving an account of his possession of property to the satisfaction of the Court.
It seems fair to say as is alleged in the ground of appeal 4 (a) that the learned trial Judge in effect directed the Assessors that they should be satisfied on the point in question with the quantum of proof which might suffice for a verdict in a civil case. But it also is evident that his summing up in this respect does not differ substantially from the concluding paragraph in the judgment in Rex v. Carr Braint (4), above quoted. It is therefore impossible for this Court to hold that there was a misdirection or non-direction.
Before leaving this ground of appeal we ought to mention the case of the commissioner of Police v. Anthony Arban (6) which was decided by this Court in 1938. It was one of the cases cited and relied on by the Acting Solicitor-General in his argument. This was a prosecution under section 11 (3) of Cap. 130 of the Laws of the Gold Coast, which requires a person found in possession of diamonds to prove” to the satisfaction of the Court” that he obtained them in a lawful manner. The judgment states that the onus of proof cast upon an accused “will not be discharged by hi!' giving an explanation which may reasonably be true even though the (Court) may not be convinced of its truth. “but the accused must go further and actually satisfy the (Court) that it is true” . In the circum- stances of the case, that statement of the law was obiter dictum. As will be observed we have not been guided by it in considering grounds (4a) and (1), but by Rex v. Carr Braint (4), which was decided after Commissioner of Police v. Arban (6).
We now come to the second ground of appeal, that” the judgment was against the weight of evidence” . Strictly speaking that is not a permissible ground of appeal, as this Court has pointed out on former occasions. It should be that the verdict was unreasonable and cannot be supported having regard to the evidence. However, 'WI~ assumed that this is what was meant.
There was a great deal of evidence which went to show that t4e lorry found in the appellant’s possession was a military lorry and that it was reasonable to suspect it to have been stolen or unlawfully obtained. The defence of the appellant was that the lorry had been built up by him from various parts lawfully bought by him from the military authorities on various occasions. The evidence which went to support this defence included the two documents, Exhibits “LL” and “R” . The former is an application for” the purchase of various spare parts, including a chassis No. OYD.46512, and the latter was a receipt for payment for the purchase of “miscellaneous scrap” . Proof that the appellant had bought this particular chassis from the military authorities would clearly have gone a long way to answering the charge against him.
It was argued on behalf of the appellant that Exhibit “LL” in the circumstances was fatal to the case for the prosecution, and moreover it was contended under ground 4 (m) that the summing up as regards this matter was defective in that the learned Judge did not so direct the Assessors.
It was undoubtedly necessary that the Assessors should keep this document “LL” well in mind. It is clear that this must have been done because the learned Judge in his summing up drew attention to its importance, and indicated that although it was produced by the appellant from his own custody, it was none the less important because it was approved and initialed by the proper officer. The Judge’s actual words were:
“Accused said that he had been buying spares, etc., from the Military on permits since early 1944 and he has produced to you a number of exhibits showing that in truth and in fact, if you believe them, he did purchase a..
great deal of spare parts from the Military. You can see the exhibits yourselves. They are Exhibits ‘HH’ – ‘JJ’- ‘LL’-‘ R’-‘ Qs ‘-‘ U ‘- ‘V’-‘ W ‘-‘ X ‘-‘ WW1-5 ‘. Well, you will have a look at them all. You will see that there was apparently a large quantity of spares bought by Bamin during 1944 and 1945 and they were bought from the Military. He said that in fact most of Exhibit ‘C’ was built from spares obtained under Exhibits ‘LL’ and ‘R’. He showed in Exhibit ‘LL’ a list in which the chassis OYD.46512 appeared as part of the purchase. It is true to say that it is the accused’s typewriting but he said there was an original in existence which was handed to the Controller of Road Transport. Notice to produce that original was given but the original cannot be traced by the Controller of Road Transport and was either lost or destroyed. But you will notice on that particular Exhibit ‘LL” written by JAMES. the Acting Controller of Road Transport, the words’ Please issue an A.S.D. to Bamin’ and one would assume ordinarily that that meant’ Please issue to Bamin the things that appear upon this list-Ex. ‘LL’. Unfortunately, James is now in the United Kingdom and unable to be called.”
The learned Judge directed the Assessors to form their own conclusions as to the genuineness of the documents mentioned by him, including Exhibit “LL”, and it appears to us that this was a proper direction. As regards its weight as evidence this entirely depended upon the view the Court (including the Assessors) took as to the presence in the list of the items relating to the chassis in question. On this point, and speaking generally on the case as a whole, we are satisfied that there was ample evidence to justify the rejection of the defence, and that the conviction was not unreasonable having regard to the evidence.
It must be presumed that the Court below was satisfied beyond reasonable doubt that the lorry belonged to His Majesty the King, and that the defendant’s explanation as to how he got possession of it was false.
Reverting to the numerous particulars as to misdirection or non-direction on the evidence (that is ground 4 (b) to (m) inclusive), we adopt with necessary modifications the language of this Court in Rex v. Ewusie and Others (7), “the appellants have criticised the” summing up of the learned Judge on a number of points, which might have been dealt with differently but we are not of opinion that they were of sufficient importance to affect the minds of the jury”.
The result of the appeal against the conviction is that it fails on all grounds and is accordingly dismissed. There is also an appeal against the sentence and we will now proceed to hear counsel on that.
Appeal dismissed.
By Court: On consideration of the submissions which have been made on this point, and in the absence of any note by the trial Judge for the imposition of what was undoubtedly a heavy sentence we are of opinion that the interests of justice will be met by the reduction of the sentence of imprisonment from twelve months I,H.L, to six months I,H.L. and of the fine from £500 to £250, or in default six months additional I..H.L.
Court below to carry out. Sentence reduced.