Recent possession of stolenproperty—Presumptionofguilt—Authorities
examined—Burden of proof—Penal Code, s. 394.
On the night of September 14, 61' coconuts were pluckel fromsixteen treesonan estate.Nextmorning 60freshly pluckednuts
werefound inasmall cadjan enclosure situated at adistance of
threeto eightfathoms from thehouse oftheaccused,whichwas
situated a quarter ofamile fromthe estate.The enclosure was
surrounded by cadjans, which could have been opened and enteredby anybody.Inthe houseitself were 600other coconutsready
for sale. These60 coconuts"Werehidden ina ditch andcovered
overwith cassavasticks. Theaccusedwaschargedwithdis-
honestly retaining stolen property (Penal Code, section 894).The accusedsaid that therewere persons whowere ill-disposed
towards him,and thatit waspossible thatthesepersons had put
the nuts into his enclosure in order to get him into trouble.
Held, thattheburden of.proofof innocencehad not beenshifted
on totheaccused, and that inall the circumstances of thecase the
Crownhadnot discharged theonuswhich lay upon it ofproving
beyond all reasonable doubt the guilt of the accused.
Theauthoritiesonthequestion ofpresumptionof guilt arising
from recent possession of stolen goods examined.
PerLord Beading C.J. cited inthe judgment:—“If anexpla-nation has been givenbythe accused, then it isforthe jury to say ^
whetheron thewhole ofthe evidencetheyaresatisfied that the
prisoneris guilty. Ifthejury thinkthattheexplanation given
mayreasonablybetrue, althoughthey arenotconvincedthatit is
true,theprisoner is entitledtobe acquitted, inasmuchas the
Crown would then have failed to dischargetheburden imposed
upon it by our lawofsatisfying the jury beyondreasonable doubt
of theguilt oftheprisoner. The onusofproofis never changed
in these cases, it always remains on the prosecution.”
rJ"'HE facts appear from the judgment.
A. St. V. Jayawardene, for the appellant.
Aserappa, for the respondent.
December 19, 1919. Bektbam C.J.—
The story of this case is as follows. On the night of September14, 61 coconuts were plucked from sixteen trees on an estate atAluthupola. Next morning 60 freshly plucked nuts were found in
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a small cadjan enclosure situated at a distance which was variouslyput at three fathoms and eight fathoms from the house of theaccused, which itself is situated about one-fourth of a mile from theestate in question. The enclosure was surrounded by oadjansabout the height of a man, and could have been opened and enteredby anybody. In the house itself were 500 other coconuts readyfor sale. These 60 coconuts were hidden in a ditch and coveredover with cassava sticks. This is practically the whole evidence.The accused is charged with dishonestly retaining stolen property.He does not give any definite explanation of the goods being foundin his enclosure, but he says that there is a man called Andris, areputed thief, who is on bad terms with him, and who lives within a“ hoo ” shout of his house, and that the watcher on the estate is abrother-in-law of Andris, and is also on bad terms with him. Hedoesrnot, however, go so far as to charge Andris definitely withconspiring with the watcher to place the nuts within his enclosure.The learned Magistrate has found him guilty, and sentenced him tosix months’ rigorous imprisonment. I have been so struck by thenumber of charges of this character, both under section 394 of thePenal Code and under the various special Ordinances which havebeen passed for the protection of produce, that I thought it desirableto re-examine the authorities on the subject.
It is material to notice, in the first place, that the section underwhich the present charge is laid is not a section in any of the special -Ordinances just referred to. The charge is under section 394 ofthe Penal- Code. It is not a case in which for the better protectionof property artificial presumptions have been created by statute.The case must be determined by the ordinary law of evidence, andthe section of the Evidence Ordinance on which the court must baseits decision is section 114, which simply declares “ that the Courtmay presume the existence of any fact which it thinks likely to havehappened, regard being had to the common course of natural events,human conduct, and public and private business in their relation tothe facts of the particular case. •” Under that section it is notedas an “ illustration, ” but as an illustration only, that “ the Courtmay presume that a man who is in possession of stolen propertysoon after the theft is either the thief or has received the goodsknowing them to be stolen, unless he can account for their beingin his possession. ”
We have not, therefore, to deal with any specific presumptioncreated by statute, nor need we pay any attention to the decidedcases which have interpreted the special words of statutes creatingsuch presumptions. We have merely to ask ourselves whether it isreasonable in the circumstances, of the case, assuming that we aresatisfied with the indentity of the stolen article, to presume that theywere knowingly retained by the person in whose possession theywere found.
Perera *.MartheliaAppu
Patera v.MarthelisAppu
( ,)It has always been a principle of the English criminal law thatwhen a man is found in the possession of recently stolen propertyit is reasonable, that he should be called upon to give some accountof his possession. The case is put in this way in a note tp Cochin’scase:1 “As a general proposition, where a person is in possessionof property, it is reasonable to suppose that he is able to give anaccount of how he came by it; and where the property in questionhas belonged to another, it is in general not unreasonable to callupon him to do so. If the change of possession has been recent,he will not be likely to have forgotten, still less if it be an article ofbulk or value.
“ If, then, it be reasonable under such circumstances to call uponthe party in possession to account for such possession, it cannot beunreasonable to presume against the lawfulness of that possession,when he is unwilling to give an account or is unable to give aprobable reason why he cannot. Now, there is no reason in generalwhy an honest person should be unwilling; and, therefore, the lawpresumes that such person is not honest, and that he is the thief.The property must have been taken by some one. He is in posses-sion, and might have taken it, and he refuses to give such informationon the matter as an honest man ought.”
The principle has, however, often been stated much more strongly.It has been customary to say: “ Here is a man found in possessionof recently stolen property. It is for him to say how it came intohis possession. The onus is shifted upon him. If he does notsatisfy the Court that he came by the stolen property honestly,he should be convicted.” I have often put the principle in this waymyself, and such a way of stating it has, indeed, the high authorityof a Lord Chief Justice of England, Lord Alverstone, who, iD R. v.Powell, 2 stated it as follows: “ The possession of recently stolenproperty throws on the possessor the onus of showing that he gotit honestly. ” A recent case in the Court of Criminal Appeal has,however, put the principle on a more exact basis. That case isR. v. Ambramovitch. * It is a case which has attracted someattention and, indeed, occasionally some misapprehension, so muchso that in a case cited in the Weekly Notes (1917), p. 373, DarlingJ. remarked that the case of R. v. Ambramovitch 3 has become“ a positive nuisance.” I have not, however, up to the presentheard it cited in this Colony. The law as now laid down by LordBeading C.J. and the other Judges in that case is as follows: —“In a case such as the present where a charge is made against aperson of receivmg stolen goods well, knowing the same to have beenstolen, when the prosecution have proved that the person chargedwas in possession of the goods, and that they had been recentlystolen, the jury should then be told that they may, not that they1 (1836) 2 Lew. C. O. 235.* (1909) 3 Grim. A. R. 1
* (1914) 84 L. J. K. B. 397.
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must, in the absence of any explanation which may reasonably betrue, convict the prisoner. But if an explanation, has been givenby the accused, then it is for the jury to say whether on tn9 wholeof the evidence they are satisfied that the prisoner is guilty. If thejury think that the explanation given may reasonably be true,although they are not convinced that it is true, the prisoner isentitled to be acquitted, inasmuch as the Crown would then havefailed to discharge the burden imposed upon it by oiur law ofsatisfying the jury beyond reasonable doubt of the guilt of theprisoner. The onus of proof is never changed in these cases, it alwaysremains on the prosecution. That is the law. In pronouncing itto be so, the Court is not giving forth any new statement of the law,but is merely re-stating it; and it is hoped that this re-statementmay be of assistance to these who have to try these cases.”
The conviction in that case was set aside, because it appearedthat in charging the jury the learned Judge spoke in such a manneras to let it be supposed ” that when once the Crown had establishedthat the goods had been recently stolen and were in the possessionof the persons accused, it was for them to satisfy the jury that theexplanation they had given of the goods being in their possessionwas true. If that is the effect of the words used by the learnedJudge, it would be a wrong direction in law to the Jury. ” See forcomments on this case per Avery J. in Bex v. Bailey 1 and Bex v.Norris,z
It now remains to apply the principle thus stated to the facts ofthe present case. With regard to the identity of the nuts, thecoincidence of those 60 nuts being found concealed in a placequarter of a mile from the spot where a corresponding amount ofnuts was stolen a few hours before is so striking that I think that thelearned Judge was justified in finding that the prpperty found wasstolen properly. He was also, of course, perfectly right in sayingthat this was a case in which the prisoner was called upon to give anexplanation. The prisoner gave a rather indefinite explanation.All he could say was that there were persons who were ill-disposedtowards him. and it was possible that these persons had put the nutsinto his enclosure in order to get him into trouble. The learnedJudge has very minutely examined this explanation, and hasdeclared that he cannot accept such a theory. In view of the morerecent authorities explained above, he would appear, to havedirected himself _ with hardly sufficient exactitude. He shouldhave asked himself, first, whether the explanation given couldreasonably be true? and next, whether, upon the whole facts ofthe case, that explanation included the Crown had satisfied himbeyond all reasonable doubt of the guilt of the prisoner. Thelearned Judge was undoubtedly justified in entertaining suspicions
111917) TP. N. 323.
* {1916) L. J. K. B., Vol. 84, p. 810.
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but ifwe ask ourselves whether the explanation'hinted at ratherthan put forward by. the prisoner may, in the circumstances of thisease, reasonably be true, there is oinly one possible answer. Itwould have been an easy thing for an enemy of the accused tohave got these nuts plucked and' to have hidden them in hisenclosure. The learned Judge says that a person carrying out thisdesign would be running a risk, and. he doubts whether such aperson would have got so many nuts plucked for the purpose.These are very pertinent comments, but it seems to me in thepresent case that it is impossible to say the suggested explanationmay not be reasonably true. The onus of proof not being shifted,it is for the Crown to satisfy the Court, and the probabilities hereare so evenly balanced that' I do not think I should be justifiedin affirming the conviction. Had the coconuts been longer in theenclosure so that the accused had a substantial opportunity offinding them there, I think that the balance might have inclinedthe other way.
Every case must, of course, be decided upon its own facts, andindividual decisions are not of very great assistance, except in sofar as they .illustrate principles; but there is a case in 14 Cox’sCrown Cases which is on somewhat similar lines as the presentcase. A bag was' missed by its owner on Saturday night. Theprisoner passed the place where the bag was missed on his way home.The bag was found in a disused hay-loft in some farm buildingsnear the accused’s cottage. There was no door to the hay-loft,and passers-by had easy access to it. The prisoner was convicted,but the Court of Criminal Appeal quashed the conviction (B. v-Hughes.) 1
For reasons I have explained above the appeal is allowed.
Appeal allowed. *
* (1878) 14Vox O. 0. 828.