[1946] EACA 18

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar) $\mathcal{M} \subset \mathcal{M} \cup \mathcal{M}$

### REX, Respondent (Original Prosecutor)

# DEWJI PRAGJI MEHTA, Appellant (Original Accused)

## Criminal Appeal No. 142 of 1945

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal law-Unawful possession of diamonds-The Diamond Industry Protection Ordinance, Cap. 103, Laws of Tanganyika-Burden of Proof-Sentence.

Certain rough and uncut diamonds having been found on premises occupied by the appellant he was charged with being in unlawful possession of diamonds contrary to section 3 (1) of the Diamond Industry Protection Ordinance (Cap. 103, Laws of Tanganyika), which reads as follows: -

"If any diamond is found in the possession, power or control of any person, that person shall, unless he proves that he obtained it lawfully, be guilty of an offence against this Ordinance, and shall be liable to a fine not exceeding twenty thousand shillings or to imprisonment of either kind for a period not exceeding ten years or to both such fine and imprisonment."

It was sought to prove at the trial that the diamonds had been planted on the appellant, but his defence was rejected and the appellant was convicted and sentenced to five years' imprisonment with hard labour and to pay a fine of Sh. $10,000$ . $\mathcal{A}_{\mathcal{A}}$

The appellant appealed.

**Held** (23-8-45).—(1) The finding of diamonds in the possession of the appellant raised a prima facie case of possession against him under S, 3 (1) of the Ordinance and the burden of proving that the possession was lawful

(2) It is a good defence to a charge of possession of diamonds to prove or to raise a reasonable doubt that the accused did not know of the presence of the diamonds.

$\mathcal{L} \rightarrow \mathcal{L} \mathcal{L}$

(3) The sentence imposed although undoubtedly severe was not excessive in the circumstances of the case.

Appeal dismissed.

Cases referred to: Queen v. Tolson, 23 Q. B. D. 1889; Reg. v. Prince 13 Cox 138; Reg. v. Marsh (2 B. & C. 717); Rex v. Jamal Din, 12 E. A. C. A. 75.

Kaplan (Tunara with him) for appellant.

Todd, Crown Counsel (Kenya) for the Crown:

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J).—The accused, a wellto-do British Indian, residing at Tabora, was convicted by the High Court of Tanganyika of the unlawful possession of diamonds contrary to the provisions of section 3 (1) of the Diamond Industry Protection Ordinance, Cap. 103 of the Laws of Tanganyika. The section provides: -

"If any diamond is found in the possession, power or control of any person, that person shall, unless he proves that he obtained it lawfully, be guilty of an offence against this Ordinance, and shall be liable to a fine not exceeding twenty thousand shillings or to imprisonment of either kind for a period not exceeding ten years or to both such fine and imprisonment."

The accused was sentenced to five (5) years' imprisonment with hard labour and to pay a fine of ten thousand $(10,000)$ shillings.

The trial was conducted with much care and the facts are fully set out in the judgment of the learned trial Judge. There is no question that diamonds within the meaning of the Ordinance, that is "rough and uncut diamonds", were found in the accused's house, of which he is the only male occupant. It was sought to prove at the trial that the diamonds had been planted on the accused. The evidence as to this was carefully considered. It amounted to little or nothing and the learned Judge was fully justified in rejecting this possibility. The search of the accused's House was conducted by Inspector MacLeod, a police officer of 18 years' service, who for a long time past had been on special duty making inquiries and investigations in connexion with the leakage of diamonds from the diamond mines in the Shinyanga district, a district adjoining the Tabora district. The discovery of the incriminating damonds was made by Constable Sawaya, a young, well-educated African constable, who was a member of the search party operating under the supervision of Inspector MacLeod.<br>Of this constable, the Judge remarks: "After a careful review of Sawaya's evidence-in-chief and of his evidence in cross-examination and from an attentive observance of his demeanour in the witness box, I am perfectly satisfied that he spoke nothing but the truth when he stated in the first place that on the day of the search there was a space behind the bottom of the picture and a wooden frame and that there he found exhibit $F$ (the diamonds) on the day of the search." Continuing with regard to Inspector MacLeod he said: "Nor does any possible reason occur to my mind why Inspector MacLeod should connive at Geoffrey (Sawaya) making a discovery of diamonds in the accused's bedroom. Inspector MacLeod has stated in evidence that he has conducted 24 searches of this kind to date, with only two successes (including the present case). He was specially selected by his superiors for the difficult task upon which he is at present engaged and it has not been suggested that he is anything other than<br>what he strikes me as, namely a candid honest man." The circumstances in which Sawaya discovered the packet of diamonds are referred to in the judgment as follows: —

"Constable Sawaya mounted a chair in accused's bedroom to examine a picture hanging over the door leading from the accused's bedroom to the adjoining room and from behind this picture he produced a small paper packet containing eight stones which have been pronounced by Mr. Streit, the Senior Inspector of Mines, to be uncut diamonds. This paper packet forms exhibit F in this trial and consists of two wrappings, the outer being a piece of lined paper such as is used in notebooks and the inner being the right hand half of a form used for the notification of births by the Native Administration." Later the learned Judge said: "I find that Inspector MacLeod was the only one of the Crown witnesses, present at the search, who kept his eyes upon Sawaya from the time that the latter took hold of the chair until he produced exhibit $F$ from behind the picture ... I am also satisfied that the accused's attention was attracted to Sawaya's actions when the latter grasped the chair and I have no doubt whatsoever that he watched everything that Sawaya did after that."

We are satisfied that the learned Judge reached a reasonable conclusion when he rejected the defence that the diamonds had been planted on the accused. The evidence fails to support it. What then is the position when diamonds are found in the circumstances appearing from the evidence in this case? It is our opinion, and this was the learned Judge's finding, that a prima facie case of possession under section $3$ (1) is established against the accused. It is open to the accused to prove that his possession was lawful and the burden he has to discharge is defined in the Indian Evidence Act-section 3-as follows: -

"A fact is said to be proved when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

In the present case the accused's contention is not that he came by the diamonds lawfully but that they were planted on him. If the accused raises a reasonable doubt of this being the case, our opinion is that he is entitled to be acquitted. References to certain cases will illustrate the position. In Rex v. Banks which is referred to in the *Queen v. Tolson* 23 O. B. D. (1889) at p. 175, Lord Kenyan "Considered it beyond question that the defendant might excuse himself by showing that he came innocently into such possession and treated the unqualified words of the Statute as merely shifting the burden of proof and making it necessary for the defendant to show matter of excuse and to negative the guilty mind instead of its being necessary for the Crown to show the existence of the guilty mind. Prima facie the Statute was satisfied when the case was brought within its terms and it then lay upon the defendant to prove that the violation of the law which had taken place had been committed accidentally or innocently so far as he was concerned." In the case of Reg. v. Prince 13 Cox 138 at pp. 150 and 151 the principle of law applicable to a case of this kind is stated by Brett, J., who was referring to the presence of such words as "knowingly", "wilfully" and "maliciously" in a Statute: -

"In the same way the word 'knowingly' is used, where the noxious character of the prohibited acts depends upon knowledge in the prisoner of their noxious effect, other than the mere knowledge that he is doing the acts; the presence of the word calls for more evidence on the part of the prosecution. But the absence of the word does not prevent the prisoner from proving to the satisfaction of the jury that the mens rea to be prima facie inferred from his doing the prohibited acts, did not in fact exist. In Reg. v. Marsh 2 B. & C. 717 the measure of the effect of the presence in an enactment of the word 'knowingly' is explained. The information and conviction were against a carrier for having game in his possession, contrary to the statute (5 Anne, c. 14) which declares 'that any carrier having game in his possession is guilty of an offence, unless it be sent by a qualified person'. The only evidence given was that the defendant was a carrier and that he had game in his wagon on the road. It was objected that there was no evidence that the defendant knew of the presence of the game or that the person who sent it was not a qualified person. The Judges held that there was sufficient prima facie evidence and that it was not rebutted by the defendant by sufficient proof on his part of the ignorance suggested on his behalf. The judgments clearly import that if the defendant could have satisfied the jury of his ignorance, it would have been a defence, though the word 'knowingly' was not in the Statute. In other words, that its presence or absence in the Statute only alters the burden of proof. 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 prosecution; but under this enactment the party charged must show a degree of ignorance sufficient to excuse him. Here there was prima facie evidence that the game was in his possession as carrier. Then it lay on the defendant to rebut that evidence." $\mathcal{L}_{\mathcal{L}}$

$\cdot$ (Bayley J.):

"The game was found in his wagon employed in the course of his business as a carrier. That raises a presumption prima facie that he knew it and that is not rebutted by the evidence given on the part of the defendant."

(Littledale, $J.$ ):

"From these considerations of the forms of criminal, enactments, it would seem that the ultimate proof necessary, to authorize a conviction is not altered by the presence or absence of the word 'knowingly', though by its presence or absence the burden of proof is altered, and it would seem that there must be proof to satisfy a jury ultimately that there was a criminal mind or *mens rea* in every offence really charged as a crime ... In some the word 'feloniously' is used, and in such cases it has never been doubted but that a felonious mind must ultimately be found by the jury. In enactments in a similar form, but in which the prohibited acts are to be classed as a misdemeanor, the word 'unlawfully' is used instead of the word 'feloniously.' What reason is there why in like manner a criminal mind or *mens rea* must not ultimately be found by the jury in order to justify a conviction?—the distinction always being observed that in some cases the proof of the committal of the acts may prima facie either by reason of their own nature or by reason of the form of the statute, import the proof of the *mens rea*: But even in those cases it is open to the prisoner to rebut the prima facie evidence, so that if in the end the jury are satisfied that there was no criminal mind or mens rea there cannot be a conviction in England for that which is by the law considered to be a crime."

The words of Hawkins, J., in the case of Reg. v. Tolson 23 Q. B. D. 1889 p. 194 are also in point: $-$

"It would seem that there must be proof to satisfy a jury ultimately that there was a criminal mind or mens rea in every offence really charged as a crime; in some cases the proof of the committal of the acts may prima facie either by reason of their own nature, or by reason of the form of the statute, import the proof of the mens rea. But even in those cases it is open to the prisoner to rebut the prima facie evidence, so that if in the end the jury are satisfied that there was no criminal mind or mens rea, there cannot be a conviction in England for that which is by the law considered to be a crime. In this view of the law, so stated by Brett, J., all the other Judges, fifteen in number, before whom the matter was heard, practically acquiesced."

In the present case the learned Judge found that the prima facie case raised by the prosecution evidence had not been rebutted and on the facts of the case we are not prepared to differ from this finding. In passing sentence on the accused the learned Judge said: —

"Unlawful possession of diamonds is a very serious offence and one punishable with a fine not exceeding twenty thousand shillings or with imprisonment for a period not exceeding ten years or with both such fine and imprisonment. These penalties of course apply whether the offence is committed in times of peace or in times of war. For the last six years the Empire has been locked in a life and death struggle with a powerful and relentless enemy. I am entitled to take judicial notice of this fact and it is obvious that any interference by unauthorized persons with such an important local industry as the diamond industry in this territory must adversely affect the Territory's war effort. From the evidence before me in this case, I have no doubt whatsoever that the accused has been engaged in illicit transactions in connexion with uncut diamonds for some time. Such conduct not only affects the diamond industry, but at the present time increases the strain upon the much depleted Police Force of the Territory. The accused appears to be an intelligent well-educated man of good social standing and comfortably situated. For the reason stated, I can find no grounds for extending any leniency to him."

It will be seen that the Judge took the view that the transaction in respect of which the accused was found guilty was not an isolated one, that from the evidence he had no doubt whatever that the accused had been engaged in illicit transactions in connexion with uncut diamonds for some time. We are not prepared to differ from this view. There was proved a careful classification of the imitation diamonds, exhibits A to E, and a segregation of the real diamonds found hidden behind the picture pointing to the correctness of this view. Some of the imitation diamonds which we examined bore a resemblance to the real diamonds and might be mistaken for them by the untrained observer. The unexplained possession of those imitation diamonds, a packet of which were described by Mr. Streit as accessory minerals which are found near diamond deposits in Tanganyika and their unexplained possession are in our opinion relevant as to conviction and sentence.

In any event for the reasons given by the High Court of Tanganyika in a previous case under the Diamond Industry Protection Ordinance and adopted by this Court in the case of $\text{Re}x$ v. Jamal Din, 12 E. A. C. A. 75, we do not propose to interfere with the sentence, severe though it be, in this case. Those reasons are as follows: $-$

$\mathcal{L}^{\mathcal{L}}$ "The penalty provided for this offence is fixed by the legislature at $\ddot{a}$ a very high standard. The offence is easy to commit and difficult to detect. In spite of all precautions at the mines, there is a terrific leakage of diamonds and the owners are at their wits' end to stop it. In spite of the employees being very well paid and fed, they continue to steal and owing to war-time conditions it is difficult, for example, to make proper barbed wire enclosures round the large diamondiferous area. These diamonds are used for industrial purposes in the war effort and are absolutely essential for many of the processes of munition making. The whole output of the industry is being taken by H. M. Government for war purposes."

The appeal is dismissed.