[1943] EACA 29

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and GRAY, C. J. (Zanzibar)

### REMTULLAH PANJU, Appellant (Original Accused)

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### REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 55 of 1943

### Appeal from decision of His Majesty's High Court of Tanganyika

Criminal Law-Gold Trading Ordinance, Chapter 104 Laws of Tanganyika-Unlawful possession of raw gold—Burden of proof.

The appellant was charged with and convicted by a magistrate of being in unlawful possession of raw gold contrary to section 8 of the Gold Trading Ordinance, Chapter 104, Volume II of the Laws of Tanganyika. The Magistrate held that the accused had not discharged the onus of proving that he came by the gold lawfully and that his explanation of having had his gold "planted" upon him was untrue. The appellant appealed to the Court of Appeal of Tanganyika and the appeal was dismissed on the ground that the onus was upon the appellant to prove that he came by the gold lawfully and that there was no reason to interfere with the Magistrate's finding of fact. The appellant thereupon further appealed to His Majesty's Court of Appeal for Eastern Africa.

The main ground of this appeal was that in any case the burden was upon the prosecution to prove that the appellant was in conscious possession of the gold.

Held (11-5:43).—The offence was of "being in unlawful possession" and therefore the burden of proof was upon the appellant to show that he came by the gold lawfully, and not upon the prosecution to show that the appellant was knowingly in unlawful possession.

Dictum of Bayley, J., in The King v. Marsh 2 B. and C. 717 applied.

Appeal dismissed.

**Phadke** (Khetani with him) for the Appellant.

Stuart, Ag. Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This is a second appeal and no appeal lies except on a question of law. The accused was admittedly found with gold in his pocket, but contended that it had been put there by a person who wished to involve him. The learned Magistrate who tried the case rejected this defence in no uncertain language, holding that the accused's explanation "is not one which might reasonably be true and that it is totally untrue, a fact of which I stand convinced beyond a reasonable doubt". In so expressing himself we think that the learned Magistrate directed himself more favourably to the accused than the facts of the case called for. As the learned Judge who heard the appeal said: "Appellant admitted that gold was found upon him and under the section charged the onus was on him to prove that he came by it lawfully". This onus could be discharged by his proving that he was under

the law entitled to possess the gold or by establishing, as he endeavoured to do in his defence, that the gold had been planted on him. The offence charged was "being in unlawful possession", not with "being knowingly in unlawful possession". The following passage in the judgment of Bayley, J., in the King v. Marsh, 2 B. & C. 717, at 723, aptly sets out the position in such cases as the present: "The general rule as to convictions is this. The information must bring the case within the clause imposing the penalty... Then as to knowledge the clause itself says nothing about it. If that had been introduced, evidence to establish knowledge must have been given on the part of the prosecutor, but under this enactment, the party charged must show a degree of ignorance sufficient to excuse him". The defence endeavoured to show that the gold had been planted by a rival merchant or his agent and Mr. Phadke contended that Hasham should have been called as a witness by the prosecution. He failed to satisfy us that there was any obligation cast on the prosecution to do so. We hold that no appeal lies since no question of law arises, and accordingly the appeal will be dismissed.

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