[1956] EACA 9

### APPELLATE CRIMINAL

#### Before RUDD and FORBES, JJ.

# HATIBU BIN RASHID AND ANOTHER, Appellants

## THE QUEEN, Respondent

## Criminal Appeals Nos. 166 and 167 of 1956

Criminal law-Burden of proof-Moving maize without a permit during the

hours of sunset and sunrise contra sections 2 and 4 of the Movement of Maize Order, 1953, vide Government Notice No. 1451/53—Presumption of guilt.

The two accused were convicted under sections (2) and (4) of the Movement of Maize Order, 1953, Government Notice No. 1451/53. A lorry containing 56 bags of maize was stopped by the police at night at about 2 a.m. The two accused were sitting with another man who was the driver in the cab of the lorry. No permit to move maize was produced either to the police or to the Court. One of the accused on being stopped replied that the load was maize.

The appellants neither gave evidence themselves nor called witnesses on their behalf.

The magistrate held that there was a strong presumption that the accused 1 and 2 were, if not the owners of the maize, a party to its movement illegally during the hours of darkness.

Held $(19-9-56)$ .—(1) That the burden of proof rests on the prosecution and that it is not for an accused person to prove his innocence. Where facts proved, however, are such as to raise a probable presumption of guilt, a Court is, in the absence of any explanation, entitled to convict.

(2) Here the commission of the crime has been proved and facts have been proved from which the complicity of the appellants in the crime may, in the absence of any reasonable explanation of those facts, be inferred. No explanation was attempted by the appellants, and in the circumstances the conviction was justified.

Case cited: Peck v. R., Mombasa Cr. App. No. 11/1956.

Appeals dismissed.

[Editor's Note.-Directions on burden of proof are commented on in R. v. Rees, 21 Cr. App. R. 35; R. v. Blackburn, (1955) 39 Cr. App. R. 84; R. v. Hepworth and Fearnley, (1955) 39 Cr. App. R. 35; R. v. Blackburn, (1955) 39 Cr. App. R. 14; R. v. Murtagh and Kennedy, 39 Cr. App. R. 152; R. v. Sum

Chawla for appellants.

Charters, Crown Counsel, for the Crown. Reported by A. O. Malik, Esq., Resident Magistrate, Nairobi.

JUDGMENT.—These two appeals were consolidated. Each of the appellants appealed from conviction and sentence on two counts of moving maize without a permit contra section 2 of the Movement of Maize (No. 2) Order, 1953, and of moving maize at night contra section 4 of the same order. We dismissed the appeals and intimated that we would give our reasons for the dismissal if they were required. Now at the request of Mr. O'Brien Kelly for the appellants we proceed to give our reasons:

The grounds of appeal were the same in the case of each appellant and were as follows: -

- (i) The learned magistrate erred in law and in fact in convicting the appellant of the offence charged. - (ii) The learned trial magistrate misdirected himself as to the burden of proof and, *inter alia*, appears to have considered that the presence of the

appellant at the time and place where the offence was committed raised a presumption of guilt.

(iii) There was no evidence whatsoever that the appellant moved or was a party to the movement of the maize the subject of the charge.

The first of these grounds is in general terms and does not specify any particular matter of law or fact in regard to which the subordinate court is alleged to have erred. We confine ourselves accordingly to the second and third grounds of appeal, which were in fact the only ones argued before us. These can be conveniently dealt with together.

There was evidence before the lower court that a lorry containing 56 bags of maize was stopped by the police at night about 2 a.m. while it was moving the said maize; that the two appellants, together with another man who was the driver of the lorry, were in the cab of the lorry; and that when questioned immediately after the lorry had been stopped the first appellant, Hatibu bin Rashid, replied that the load was maize. The appellants neither gave evidence themselves nor called witnesses on their behalf. No permit to move maize was produced either to the police or to the Court. Upon the evidence before him the learned magistrate held that "there is a very strong presumption that the accused 1 and 2 (that is, the appellants) were, if not the owners of the maize, a party to its movement illegally during the hours of darkness".

It was argued before us that the mere presumption was not enough and that the case was not proved beyond reasonable doubt; and that there was no evidence that the appellants were anything except mere passengers in the lorry.

This argument, however, in our view ignores the circumstances of the case. Here a lorry, a private vehicle, is found being used for the illegal movement of maize very late at night. It is not to be expected that strangers would normally be found travelling in such a lorry. The facts, in our opinion, raised a probable presumption that the appellants were concerned in the illegal movement of the maize.

It is, of course, clear law that the burden of proof rests on the prosecution and that it is not for an accused person to prove his innocence. Where facts proved, however, are such as to raise a probable presumption of guilt a Court is, in the absence of any explanation, entitled to convict. The usual case where this occurs is where a person proved to have been in possession of property which has recently been stolen is charged with the theft of the property. In the absence of a reasonable explanation as to how such person came by the property, the Court may properly convict him. If any reasonable explanation is given, this will so far rebut the presumption as to throw it upon the prosecution to negative the account given. In our view a very similar position obtained in this case.

In support of the argument for the appellants the case of $Peck$ v. R., Mombasa Criminal Appeal No. 11 of 1956 (unreported) was cited to us. In that case, however, no question arose of any presumption to be drawn from facts proved. The magistrate there had "in effect ... held that the prosecution were absolved from proving an essential ingredient in their case and that the burden was cast upon the accused of proving that no crime was committed by proving facts specially within his knowledge", and this Court held that this method of approach was quite inadmissible.

Here the commission of a crime has been proved, and facts have been proved from which the complicity of the appellants in the crime may, in the absence of any reasonable explanation of those facts, be inferred. No explanation was attempted by the appellants and in the circumstances we were of the opinion that the learned magistrate was justified in convicting them. We accordingly dismissed the appeal.