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ATTORNEY-GENERAL
V.
JOHN HANNAH KHOURY
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH DAY OF JUNE, 1953
2PLR/1953/22 (WACA)
OTHER CITATION(S)
2PLR/1953/22 (WACA)
(1953) XIV WACA PP. 336 – 338
LEX (1953) – XIV WACA 336 – 338
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
ATTORNEY-GENERAL – Appellant
AND
JOHN HANNAH KHOURY – Respondent
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ORIGINATING COURT(S)
Appeal by the Attorney-General against the decision of the Supreme Court setting aside a conviction passed by a Magistrate: No. 3/53.
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REPRESENTATION
M. C. Marke, Crown Counsel — for Appellant
C. S. T. Edmondson — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ENVIRONMENTAL LAW – MINING:- Minerals Ordinance, Chapter 114 Sections 60 and 61 – Possession of mineral – Onus to prove lawful Possession – How treated
CRIMINAL LAW AND PROCEDURE:- Offence of possession of mineral (diamonds) under Minerals Ordinance, sections 60 and 61 — Onus of proof on Prosecutor — When burden falls on accused to prove innocent possession — How properly treated
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CASE SUMMARY
The Minerals Ordinance, section 60, provides that no person (with exceptions not relevant here) shall possess any mineral (which by definition in section 2 includes diamonds).
Section 61 makes a person found in possession liable to punishment if he “does not prove to the satisfaction of the Court that be obtained such mineral lawfully”.
A police officer searching the respondent found in his pocket diamonds tied up in a small cloth and cautioned him saying he, the officer, had reason to believe “these are rough diamonds”, to which the respondent replied, “Yes, they are not mine, I am carrying them for John Jacobs”. Jacobs said, “Yes, he is carrying them for me”.
At his trial the respondent said that when Jacob gave him the parcel to carry he “felt some stone” but did not know what they were. And Jacobs testified that on respondent asking him what was in the parcel he said to respondent, “Keep it first and after ten minutes I shall tell you my reason”.
The Magistrate regarded the respondent as untruthful and did not believe that he did not know what the bag contained. The respondent was convicted and appealed to the Supreme Court.
The Judge thought that the Magistrate erred on the facts and acted on wrong principles; that he ought to have been satisfied by the explanation of the respondent and Jacobs. The conviction was set aside and the Attorney-General appealed from the Judge’s decision on the grounds that the respondent’s answer to the police officer was an admission that he knew what the bag contained and that the onus of proving innocent possession lay on the respondent, who failed to satisfy the Magistrate. For the respondent it was argued that guilty knowledge was essential and the Magistrate ought to have accepted the respondent’s explanation.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal and restoring the conviction):
1. A person found in possession of diamonds contrary to section 60 of the Minerals Ordinance does not discharge the onus shifting to him under section 61 by giving an explanation which may reasonably be true but must actually satisfy the Magistrate that it is true;
2. In this case the Magistrate did not act on wrong principles nor ought he to have been satisfied by the explanation offered by the evidence for the defence, and the conviction ought not to have been set aside.
Case cited:-
(1) Commissioner of Police v. Arbar, 4 W.A.C.A. 195.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The respondent was convicted by the Magistrate’s Court, Freetown, of having in his possession 248 pieces of rough diamonds weighing 116.3 carats contrary to the provisions of section 60 of the Minerals Ordinance, Chapter 114. The section provides:-
“No person shall possess any mineral unless he is the lessee of a mining lease, or the holder of a mining right, exclusive prospecting licence or a prospecting right, or of a licence granted under section 64 or the duly authorised employee of such lessee or holder”,
and diamonds are included in the definition of “minerals” in section 2 of the Ordinance.
Under section 61 of the same Ordinance a person found in possession of any mineral is made liable, on conviction, to certain penalties if he “does not prove to the satisfaction of the Court that he obtained such mineral lawfully”.
The prosecution proved that the respondent was found in possession of the diamonds mentioned in the charge contrary to the provisions of section 60 of the Ordinance.
Senior Assistant Superintendent of Police Bernard Nealon gave evidence that he searched the respondent and after he had found the diamonds tied up in a small linen cloth in the respondent’s left hand trousers pocket he cautioned him and said that he had reason to believe “These are rough diamonds”, to which the respondent replied, “Yes, they are not mine, I am carrying them for John Jacobs”. The latter was arrested in company with the respondent and diamonds were also found in his possession, and Nealon testified that when the respondent asserted that he was carrying them for his companion, Jacobs said, “Yes, he is carrying them for me”.
The respondent gave evidence on oath at his trial maintaining that the parcel had been given to him to carry by Jacobs. He admitted that he “felt some stones” but asserted that he did not know what they were.
Jacobs gave evidence for the defence, during the course of which he again stated that he had given the parcel to the respondent to carry for him and that when he did so the respondent asked him what was in it to which he replied, “Keep it first and after ten minutes I shall tell you my reason”.
In announcing his decision the Magistrate said “accused’s story in the witness box was a series of inconsistencies. He was evasive and in many cases untruthful in his answers. I do not believe accused when he said he did not know what the bag contained”. He concluded by saying, “I am satisfied prosecution has proved its case beyond any doubt and I find the accused guilty of the charge,” and he sentenced the respondent to four months imprisonment with hard labour, made an order for deportation and forfeiture of the diamonds.
The respondent then appealed against his conviction and sentence to the Supreme Court. The appeal was heard by Beoku-Betts, J., who appears to have thought that the Magistrate erred on the facts and acted upon principles which were contrary to decided cases, particularly that of the Commissioner of Police v. Arbar (1), and he allowed the appeal.
The case then came before this Court on appeal by the Attorney-General against the judgment of Beoku-Betts, J.
On behalf of the Attorney-General Mr. Marke submitted, firstly, that the respondent’s statement, “Yes, they are not mine, I am carrying them for John Jacobs”, made in reply to Superintendent Nealon’s remark, “I have reason to believe these are rough diamonds”, was a clear admission that he knew what the bag contained, and, secondly, that the onus of proving that his possession of the diamonds was innocent lay upon the respondent, and as he failed to discharge that onus to the satisfaction of the Magistrate the learned appellate Judge erred in disturbing the Magistrate’s decision.
On the other hand Mr. Edmondson, counsel for the respondent, submitted that guilty knowledge was an essential ingredient of the offence and that the Magistrate was wrong in not accepting the respondent’s evidence supported as it was by the evidence of Jacobs, that he was carrying the bag for Jacobs and did not know its contents.
It seems to us beyond argument that once the prosecution has proved that a person was found in possession of diamonds contrary to the provisions of section 60 of the Minerals Ordinance, section 61 then shifts the onus to that person to prove that he obtained such diamonds lawfully, and that the onus of proof thus cast upon an accused person is not discharged by his giving an explanation which may reasonably be true even though the Magistrate is not convinced of its truth but that the accused must go further and actually satisfy the Magistrate that it is true.
In our opinion there is nothing to justify a conclusion that the Magistrate acted upon wrong principles nor do we think that it can reasonably be said that he ought to have been satisfied by the explanation offered by the respondent and his witness Jacobs.
It follows that, in our view, the learned appellate Judge misdirected himself in allowing the respondent’s appeal. The judgment now appealed from is accordingly set aside and the verdict and sentence of the Magistrate is restored. In view of the fact, however, that the Magistrate exceeded his jurisdiction in making an order for the deportation of the respondent we set aside that portion of his judgment and as the respondent has no previous convictions and has been in the country for seventeen years we make no recommendation in substitution therefor. We do not consider the sentence imposed is excessive.
Appeal allowed: conviction restored.
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