[1945] EACA 46

## APPELLATE CRIMINAI

## BEFORE LUCIE-SMITH AND HORNE.

## REX, Respondent

$\nu$ .

## KURIA s/o WANGANGA, Appellant Criminal Appeal No. 165 of 1945

Criminal law—Charge of Theft, s. 269 Penal Code—Conviction for Unlawful possession of Military Property, s. 317 A (1) Penal Code-Practice-Application of s. 179 (2) Criminal Procedure Code.

The accused was charged with theft of eleven military tyres. The stolen tyres were found hidden in a hole in the ground 72 feet from accused's hut in a native village. The magistrate was not satisfied that it was the accused who had brought the tyres to the place where they were found but he found that the accused knew that the tyres were there. He therefore acquitted him of the theft and purporting to act under s. 179 (2) Criminal Procedure Code convicted him of unlawful possession of military property contrary to section 317 A (1) Penal Code. The accused appealed.

Held (29-8-45).—(1) Having regard to the burden of proof in an offence under section 317A (1)<br>Penal Code being on the accused such an offence cannot be classed as a "minor offence"<br>to theft under S. 179 Criminal Procedure

(2) When on a charge of theft that offence is not proved and it is intended to inquire whether a charge of unlawful possession under section 317A Penal Code has not been<br>made out the proper procedure is to charge the accused with the latter offence at the close of the case for the prosecution.

Appellant in Person.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—The accused was charged with the theft of tyres and was called upon to make a defence to that charge. He made a statement and called no evidence. After hearing the prosecution the Magistrate released the accused on bail, and adjourned to a later date when he gave judgment. He says that there was no evidence that the accused had brought the tyres to the place where they were found, i.e. in land not his, but over which he had the right to cultivate. The Magistrate finds, however, that the accused knew the tyres were there; but we doubt whether such inference of knowledge can be safely drawn from the evidence. The Magistrate then, thinking obviously it was unsafe to convict the accused of theft, goes on to find that the accused "was in possession of the tyres without any authority or satisfactory explanation", and under the provisions of section 179 (2) C. P. C. found him "not guilty of theft but of unlawful possession of military property contrary to section 317 A $(1)$ ".

The question is whether a court can so apply section 179 (2). In our opinion, the Magistrate, at the close of the prosecution case, should have considered whether theft was established and if he then thought a charge under section 317 A was the proper one, he should have re-charged the accused. We think that section 179 cannot be used to convict a person charged with theft, with the offence of failing to give a satisfactory explanation under sections 316, 317 and 317 of the Penal Code.

The jurisdiction under those sections is to call upon an accused person to give an explanation of his possession in certain circumstances. It necessarily follows that an accused person must be informed that the circumstances entitling the Magistrate to call upon him have been established, and he may then go into the box, if he wishes, or call other evidence, and the provisions of section 318 may also he resorted to.

Offences under these sections which contrary to general principles, place $x$ burden of proof upon the accused, stand in a rather special category and the procedure laid down by them must be strictly followed. Here in effect the Magistrate has convicted the accused without giving him the required opportunty to make an explanation. It cannot be argued that the accused has already had that opportunity when charged with theft, for on that charge, the burden of proof of every particular of the charge is upon the prosecution, and the accused was under no obligation at the close of the prosecution case to establish anything. Offences under these sections, therefore, cannot be classed as "minor offences" under section 179. That section empowers a Court where facts are proved which amount to a minor offence to convict of that minor offence though the accused is not charged with it, and that section can only be read as applying to a minor offence with regard to which the onus of proof is upon the prosecution.

We, therefore, think the Magistrate was wrong in recording a conviction under section 317 A. His finding is also the equivalent to a finding of not guilty to the charge of theft. The appeal must be allowed, and the conviction quashed...