[1943] EACA 63

## APPELLATE CRIMINAL

BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX. Respondent

$\mathbf{v}$

## HUSSEN NANJI, Appellant

## Criminal Appeal No. 158 of 1943

Criminal Law—Receiving stolen property—Proof that goods stolen—Application of the rule in Rex v. Schama and Abramovitch.

The facts appear sufficiently from the Judgment.

**Held** $(16-10-43)$ .—(1) That the circumstances in which the accused was found in possession of a brand new fuel pump on the $3\pi$ d July considered with the evidence that an identical fuel pump was received at the Air Force Station on the 4th February and was missing at a stock-taking on the 5th and 6th June was sufficient to conclude that the pump was stolen.

(2) That although the Magistrate suggested but did not find a possibility of the accused's explanation being reasonably true he did not offend against the rule in Schama and Abramovitch by at any time placing on the accused the onus of proving his innocence but after hearing the evidence of the prosecution which disclosed a prima facie case of possession of recently stolen property he proceeded to hear the accused's explanation and therefore having-regard to the whole evidence he came to the conclusion that the accused's explanation was inconsistent with innocence.

Appeal dismissed.

Grinberg 12 Cr. A. R. 259 cited.

Ketteringham 19 Cr. A. R. 159 also cited.

Mangat for the appellant.

Stacey, Crown Counsel, for the Crown.

JUDGMENT.—The appeal concerns a conviction for receiving with guilty knowledge a Chevrolet fuel pump, the property of the Royal Air Force. The evidence is that a fuel pump identical with the one alleged to have been stolen was received at the Air Force Station on the 4th February, 1943. On the 5th and 6th June, 1943, when there was a stock-taking, there should have been one such pump in stock and there was not one. There was no record to show that the pump had been issued out.

The accused worked in the hangar at the Aerodrome. According to the evidence "he would not have access to the fuel pump. It would have to be drawn out for a job—then anyone could pick it up".

On the 3rd July, 1943, at 5.15 p.m. there was a search of civilian employees at the gate of the Aerodrome. The accused was one of those leaving and on a search being made of the bag which he was carrying on the handlebar of his bicycle a brand new pump identical with the missing pump was discovered. The accused, while having to admit the presence of the pump in his bag, said: "I do not know how the fuel pump got into my bag. It was planted there".

The first question to answer is whether the pump found in the accused's. possession was proved to have been stolen. In our opinion the circumstances which we have narrated are sufficient to prove that it was. The following passage in the judgment of the Court of Criminal Appeal in England in the case of Leoni Sbarra, 13 Cr. App. R. 118 at 120, is apposite: -

The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and further may prove that he knew it at the time when he received them. It is not a rule of law that there must be other evidence of the theft. We have come to the conclusion that the circumstances here were enough to prove that the goods had been stolen."

In the present case the question would be whether the circumstances in which the accused was found in possession of the fuel pump, considered with the evidence of the missing pump, are not sufficient to conclude that this brand new fuel pump was stolen. In our opinion they are and even though there were no evidence that a pump was missing from the Air Force equipment department there would exist a strong circumstantial case that the property found on the accused belonged to the Air Force.

The next question is whether the accused was found in possession of the pump knowing or having reason to believe it to have been stolen. The learned Magistrate in finding the accused guilty said: "I am not prepared to find that the accused's explanation, if reasonably true, is consistent with innocence". Previously in his judgment he said: "I have directed my mind to the leading decision in $R$ . v. Schama and $R$ . v. Abramovitch and I have to consider whether the accused's explanation might reasonably be true and is consistent with innocence". These words he has evidently taken from Archbold, 30th Edition, p. 746.

Quoting from the report of the judgment in the case of Schama and Abramovitch, 24 Cox at pages 593 and 594, it reads:

"Where an accused person is charged with receiving property recently stolen, after the prosecution have proved possession by the accused and that the property has been recently stolen, the Jury should be told that they may, $\sqrt{ }$ not that they must, find the accused guilty, in the absence of any reasonable explanation. But if the explanation given may be true, it is for the Jury to say, having regard to the whole of the evidence, whether the accused is guilty or not. If the Jury consider that the explanation may reasonably be true, although they are not convinced of its truth, they should acquit the accused because the Crown has not discharged the burden which rests upon it of satisfying the Jury beyond reasonable doubt that the accused is guilty. That burden always rests upon the prosecution and never changes".

The accused's defence in the present case was that though the property was found in his bag, he did not know how it got there and that it was planted there. He could give no reason why it should have been planted on him.

At first sight it might appear on the decision in the Schama and Abramovitch case that if the learned Magistrate considered that this explanation might reasonably be true, although he was not convinced of its truth, he was bound to acquit the accused—But he makes no finding as to whether this explanation might reasonably be true. This is what he says in his judgment:-

"This case turns on the question of recent possession of stolen property. I have directed my mind to the leading decision in $R$ . v. Schama and $R$ . v. *Abramovitch* and I have to consider whether the accused's explanation might reasonably be true and is consistent with innocence. In considering this I note the following points arising from the evidence:—

- (1) Whilst the accused would not have immediate access to the stolen property, if it were drawn out from the store for a 'job' anyone could have the opportunity of picking it up, and whilst one is supposed to sign for anything taken from the store this is not always done. - (2) The accused's bag, Exhibit 4, contained his food for the day when he arrived at work and would have been lighter when the day's work was over. A test showed that the addition of the stolen property in the bag increased its weight appreciably, but the accused said he felt no difference in the weight of the bag.

- (3) Corporal Stone testified to the accused's hurrying out by the 'Vehicles' gate as against the usual exit for cyclists and pedestrians, and said: 'When I went over to him (accused) he appeared to walk faster. I had to tell him to stop twice'. I have no reason to do other than accept this $e$ vidence. - (4) The search of workers leaving the Section is not a daily occurrence and the employees do not know when a search may be made.

In considering these points, and in the light of the evidence as a whole. I am not prepared to find that the accused's explanation, if reasonably true, is consistent with innocence. I find him guilty of the offence charged and convict him."

The passage in the judgment reading, "In considering these points," and in. the light of the evidence as a whole I am not prepared to find that the accused's explanation, if reasonably true, is consistent with innocence", has exercised us a great deal. The Magistrate suggests but does not find a possibility of the accused's explanation being reasonably true and at the same time says that he is not prepared to find that the explanation is consistent with innocence. One passage in the judgment in the case of Schama and Abramovitch indicates that even though an accused person gives an explanation which may reasonably be true it is open to a Jury (in the present case the Magistrate) to convict; it reads: "But if the explanation given may be true it is for the Jury to say having regard to the<br>whole of the evidence whether the accused is guilty or not". The following passage in the judgment in Grinberg's case, 12 Cr. App. R. 259 at 260 also throws some light on the question: "There does not seem to be any difficulty in understanding the rule. It really comes to this. In the first place it is for the prosecution to prove their case against the prisoner. If such a case is proved as in the absence of some explanation by the prisoner would be conclusive against him, it is only reasonable that he should provide the jury with some ground for acquitting him. That has been called 'giving a reasonable explanation how the prisoner comes to be in possession of the stolen property'. If the prisoner gives that explanation it is still for the prosecution to satisfy the jury that he is guilty, and in that sense the burden of proof is always on the prosecution. It is never so shifted on to the prisoner that the prosecution has a right to say, 'If the prisoner does not prove himself innocent, he ought to be convicted'. To the very last it is for the prosecution to prove that the prisoner is guilty".

Finally in the case of *Ketteringham*, 19 Cr. App. R. 159 at 160, Avory, J., said: "The question which should have been left to the Jury was simply 'Did the appellant receive the goods in such circumstances that he must then have known them to have been stolen.... The Jury should have been told not only that they could acquit, but that they ought to acquit the appellant if they were satisfied that his explanation was consistent with his innocence".

In the present case as we read the Magistrate's judgment he did not offend against the rule in Schama and Abramovitch by at any time placing on the accused the onus of proving his innocence, but after hearing the evidence of the prosecution, which disclosed a prima facie case of possession of recently stolen property, he proceeded to hear the accused's explanation and thereafter having regard to the whole of the evidence, including for instance the manner in which the accused was making his exit and the weight of the kikapu with the pump in it, he came to the conculsion that the accused's explanation was inconsistent with innocence.

On a consideration of the whole case we are not prepared to disturb the conviction.

The appeal is dismissed.