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COMMISSIONER OF POLICE
V.
ANTHONY ARBAN
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
14TH DAY OF DECEMBER, 1938
2PLR/1938/17 (WACA)
OTHER CITATION(S)
2PLR/1938/17 (WACA)
(1938) IV WACA PP. 195 – 196
LEX (1938) – IV WACA PP. 195 – 196
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BEFORE THEIR LORDSHIP(S):
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBB, C.J., SIERRA LEONE
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BETWEEN:
COMMISSIONER OF POLICE — Respondent
AND
ANTHONY ARBAN — Appellant
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REPRESENTATION
A. G. Heward-Mills — for Appellant
T. A. Brown — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – PROOF OF CRIME:- Conviction for unlawful possession of diamonds contra sec. 11(3) of Cap. 130 – Onus of proof on prosecution to establish possession – When deemed not discharged – Legal effect for the secondary burden on accused to prove lawful possession
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CASE SUMMARY
Diamonds were found among the boxes of shoes on a shelf in Appellant’s shop. The Appellant pleaded that he knew nothing of their presence. The prosecution admitted that they might have been placed there by anyone entering the shop.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
There being no evidence that the appellant was aware of the presence of the diamonds in his shop the prosecution had failed to establish possession by the appellant.
Appeal allowed
MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.
The appellant appeals against a conviction for being found in possession of diamonds contrary to section 11(3) of Cap. 130. The diamonds were found not on the appellant’s person but placed among some boxes of shoes on a shelf in his shop, that is to say they were in his constructive, rather than in his actual possession, and the defence was that the appellant knew nothing about their presence on his premises.
Section 11(3) provides:
“Any person who being found in possession of any diamond, does not prove to the satisfaction of the Court that he obtained such diamond in a lawful manner shall be guilty of an offence against this Ordinance”
and the Magistrate disposed of the defence as follows:
“After carefully weighing the whole of the evidence and also taking into consideration the principles laid down in the case quoted, (Rex v. Schama & Abramovitch, 11 Cr. App. R. 45), I am satisfied that the explanation as given in the evidence of the accused is unreasonable and cannot be believed”.
In our judgment there is some confusion here. Apart from section 11(3) it would have been necessary for the prosecution to prove beyond reasonable doubt two things, firstly that the appellant was in possession of diamonds, and, secondly, that his possession was unlawful. All that section 11(3) does is to throw upon the accused the burden of “proving to the satisfaction of the Court” that the possession was lawful, and it cannot be doubted that, once possession has been established, the burden of proof cast upon an accused will not be discharged by his giving an explanation which may reasonably be true even though the Magistrate is not convinced of its truth (Rex v. Schama, 11 Cr. App. R. 45), but the accused must go further and actually satisfy the Magistrate that it is true.
But the fact of possession must first be established, and here the Ordinance does not alter the general rule of the criminal law that the prosecution must prove beyond reasonable doubt the existence of any fact which has to be proved in order to constitute the offence. Now a thing cannot be said to be in the constructive possession of a person and merely because it is found on his premises, unless it can be proved either by direct evidence or by necessary inference from the place and circumstances in which the thing was found, that it was placed there with his knowledge or consent. (See Halsbury, 2nd Edition 9. 552, R. v. Pratt, 4 F. & F. 315; R. v. Freedman, 22 Cr. App. R. 133) But in the present case the evidence established, as indeed was admitted by the prosecution, that “it might be possible for anyone entering the shop to purchase to place the box of diamonds on the shelf in question.”
Wills Circumstantial Evidence, 6th Edition 311, states the rule thus:
“In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”
An almost exactly similar case to the present was R. v. Obiase* (W.A.C.A. Lagos, 7 January, 1938) in which the appellant had been convicted of being in possession of counterfeit coins. In setting aside the conviction the Court said:
“In the present case under the new section 150A although once possession is proved the onus is cast on the accused to prove lawful authority or excuse, the onus still remains on the prosecution to give conclusive evidence of possession. That is to say the prosecution must prove facts which are not capable of any other reasonable explanation than that the coins were in the accused’s possession, that is to say in the present case, that the coins found in the accused’s house were there with his guilty knowledge. We can find in this case no one fact or combination of facts which conclusively negatives the alternative possibility that the coins were in the accused’s house unknown to him.”
In our judgment the evidence of possession in this case, when considered, as it should be, by itself and not confused with the second point, the explanation given by the appellant, failed to satisfy the criterion laid down by Wills and by the decision just cited, and we are therefore of opinion that the conviction cannot be supported.
The appeal is allowed, the conviction and sentence are quashed, and it is ordered that a judgment and verdict of acquittal be entered and that the fine, if paid, be refunded to the appellant.