[1947] EACA 66

## APPELLATE CRIMINAL

## Before NIHILL, C. J., and DE LESTANG, J.

## REX, Respondent (Original Prosecutor)

v

## FAISON WAWERU S/O KIARIE, Respondent (Original Accused No. 1)

Criminal Appeal No. 235 of 1947

Criminal law—Receiving—Joint possession—Onus of proof.

The appellant was found with others within twelve hours of the commission of three thefts in a motor car in which some of the stolen property was discovered. He was not the driver or owner of the car and the property was found in a locked receptable not under his control. A screw-driver was found in his pocket. He was convicted of theft.

Held (16-9-47).—That there was insufficient evidence of joint possession. There was, therefore, no evidence of theft or receiving and the accused must be acquitted.

D. V. Kapila for the Appellant. Holland, Crown Counsel, for the Crown.

JUDGMENT.—This appeal has come before the Court a second time under the provisions of section 358 of the Criminal Procedure Code, the Court having been equally divided after the first hearing.

The point for consideration is whether there was sufficient evidence on which the Magistrate could reasonably convict the appellant on the following charges: —

- (a) In that on the night of 3/4th May, 1947, the accused did steal from the car of Col. Durrant at Limuru, Central Province, one generator and two horns valued at Sh. 200, the property of the said Col. Durrant. - (b) In that on the night of $3/4$ th May, 1947, the accused did break and enter the garage of Mr. F. J. Ford, Limuru, in the Central Province, and did steal from the motor car therein a generator valued at Sh. 150, the property of the said Mr. Ford. - (c) In that on the night of $3/4$ th May, 1947, the accused did break and enter the garage of Mr. Peacock, Limuru, in the Central Province, and did steal from the motor car therein a generator valued at Sh. 150, the property of the said Mr. Peacock.

Now it is not in dispute that on the night of $3/4$ th May the facts as detailed in the three counts were carried out. It is also a fact that due to smart police action all the stolen property was recovered within a matter of some hours. The generator mentioned in the first count was found in possession of the third accused, who was tried with the appellant. This man was apprehended by the police at 3 a.m. on the night in question not very far from Colonel Durrant's garage carrying a generator. The rest of the stolen property set out in the other two counts was found in the luggage boot of a taxi-cab on the highway between Limuru and Nairobi in the forenoon of the day following the night of the crime. The appellant was sitting in the front seat of the car with the driver when the police stopped and searched it. In the back of the car was another man, who was subsequently the second accused in this case and who, together with the third accused, pleaded guilty to all three counts. The case of the fourth accused, who was the driver of the taxi-cab, has already been before this Court on appeal and his conviction has been changed to one of receiving stolen property knowing it to have been stolen. The police evidence disclosed that the fourth accused denied at first that he had a key for the luggage boot and that he only produced one after a threat had been made that the boot would be broken open. It was this fact that largely helped to establish the inference of guilty knowledge.

Enough has now been said to marshal the evidence against the appellant. He was found within less than twelve hours of the crime in a motor car in which some of the stolen property was discovered, but he was not the driver or owner of the car and the property was found in the locked receptacle not under his control. On his person was found a screw-driver, to which reference will be made later. One of the police officers, when they approached the taxi-cab, testified that he noticed that the appellant appeared to be crouching down on the seat of the car as if trying to hide himself. We think it would be unsafe to build much on this observation seeing that the appellant had been talking to the police a little earlier when the taxi-cab had first been observed halted on the road nearer to Limuru. The appellant must have known when the police pulled their car across the road to stop the taxi-cab that the police were in it and that escape from notice was impossible.

The appellant's explanation of the fact that he was in the taxi-cab in which stolen property was discovered was as follows: -

"Nothing was found with me. The accused (4)-dropped a European passenger and was going back and he gave me a lift. Accused (2) was overtaken after Camp. The driver stopped as there was something amiss with the car. Accused (2) got into the car. He was carrying something with him—in gunny and a cloth (in Court). He got into a back seat with these things. The driver drove on. After going a little further we met the police car across the road. The police stopped us. The police asked accused (3) who was with him and he said it was No. (2). We were all arrested and taken to the police station. At the police station I was searched and found with the screw-driver in Court. I said I had a sewing machine and used this for it. I showed the police my machine at my house".

The evidence of the driver of the car (the fourth accused) supported the unsworn statement made by the appellant. There is nothing in the prosecution evidence which contradicts the story told by the appellant except for one particular. It is evident from the police evidence which can be regarded as trustworthy that the bag containing two generators and two horns was found in the luggage boot and not, as the fourth accused would have it, on the back seat of the car. Therefore, when the appellant said that the second accused got into the back of the taxi with the things he was carrying he was not speaking the truth, or at least he is suppressing the fact that at some stage or other the things were put into the boot. We do not think, however, that this one factor, although it may increase suspicion, is sufficient to fill up the gaps in the prosecution case.

We hope we shall not be considered unfair to the Magistrate who heard this case, and who obviously has taken pains with his judgment, when we say that there is every indication that he woefully misdirected himself on several points. For instance, he addressed his mind as to whether the inmates of the taxi-cab could all be said to be in joint possession of the stolen property found in the locked boot, but having posed the question to himself he never answered it. instead he speaks of the heavy burden of proof resting on the appellant to show that he was not in joint possession. Judges who preside over criminal trials in this Colony and elsewhere are sometimes wearied by the persistence with which defence counsel quote the famous case of Rex v. Woolmington (1935), A. C. 462, but after studying the judgment before us we do most earnestly hope the Magistrate who tried this case will read, mark and inwardly digest it. For throughout his judgment runs, not we fear the golden thread referred to with such eloquence by Viscount Sankey, L. C., but a warped skein of suggestion that an accused person upon whom suspicion may rest, must prove his innocence if he is to escape conviction. We say at once, that even without any explanation by the. appellant, we doubt if the evidence would justify a finding of joint possession. Without joint possession there is nothing left against the appellant save the possession of a screw-driver. Whilst per se an innocent implement it must be

conceded that such a tool might well come in useful on a nocturnal adventure of the kind it is suggested by the prosecution that the appellant had been engaged. There is no evidence, incidentally, that a screw-driver was needed or must have been used to remove the garage locks, or to remove the motor parts stolen. Contra there is evidence that the second accused on his way to the police station took out a handful of tools from inside his clothes and tried to throw them away. These consisted of a pair of pliers and five spanners. Had the prosecution proved that in addition to these useful instruments a screw-driver must have been used, the case against the appellant under this head might be stronger. As it is, all that is known is that the appellant who owns a sewing machine was found with a screwdriver in his pocket in the taxi-cab in which stolen property under the exclusive control of the driver was discovered. We think that too slender a basis on which to convict the appellant even of receiving, let alone the charges of breaking into and stealing. We have not overlooked the fact that the appellant elected to make an unsworn statement and thereby avoided what might have been awkward questions as to why he was in the neighbourhood of Limuru on the morning in question. It would, we think however, be wrong, in view of the paucity of the evidence against him, to use this circumstance to turn the balance against the appellant from innocence to guilt. Section 209 of the Criminal Procedure Code gives a clear election to an accused person and contains no warning that an unsworn statement may lead to an adverse inference being drawn. We know that it is the practice of some Judges and Magistrates, and we think it is a good one. to point out that an unsworn statement cannot have the same evidentiary value as evidence which has been subjected to cross-examination, but whether this practice was observed on this occasion we have no means of knowing. Had the case been tried by a Judge with a jury and regarding the judgment as a summingup we have no hesitation in saying that an Appeal Court would have had to quash the conviction on the grounds that had the Judge not misdirected them the jury might quite well have come to a different conclusion (Cf. Rex v. Abramovitch, 11 C. A. R. 43). Whether or not the Magistrate would have acquitted the appellant in this case had he properly directed himself we cannot say, but as we have now come to the conclusion ourselves that the appellant who, although he may be under suspicion, has given an explanation which may be true, we find that the prosecution did not discharge the onus which rested on it to prove his guilt.

We therefore allow his appeal and quash the conviction. The appellant must be set at liberty forthwith.