Inferior Court
Appeal No. 1 of 1981
30th March, 1981
Barrington-Jones, J.

Appearing for the Appellant: Mr. P. Zuniga
Appearing for the Respondent: Mr. G. Quallo

Criminal Law - Appeal from Inferior Court against conviction and sentence - Receiving contrary to section 177(1) (a) of the Criminal Code - Mens rea of offence of Receiving - Applicability of doctrine of Recent Possession section 95 of Evidence Ordinance the offence of receiving.

J U D G M E N T

The Appellant was convicted of Receiving contrary to section 177 (1)(a) of the Criminal Code by the Magistrate for the Stann Creek Judicial District on the 5th December, 1980. An appeal was filed on the 20th January, 1981 reciting the following grounds:-

(1) The decision was based on a wrong principle in that the Magistrate misdirected himself in holding that the duty of the prosecution was to satisfy the Court that the Defendant received the articles in question "in such circumstances that he knew or ought to have known that they were stolen";

(2) The decision could not be supported having regard to the evidence;

(3) The decision was such that the Inferior Court viewing the circumstances reasonably could not have so decided.

In regard to ground (1) Mr. Zuniga complained that the learned Magistrate had fallen into error in his Reasons for Decision where he had stated: "that he in the alternative received these articles in such circumstances that he knew or ought to have known that they were stolen." Mr. Zuniga drew the Court's attention to the wording of Section 177 (1) of the Criminal Code and submitted that the learned Magistrate in using phrase "or ought to have known" indicated that he (the Magistrate) was not sure whether the Appellant knew that the goods had in fact been stolen. He said that the Magistrate had applied the wrong test and that he should have given the Appellant the benefit of the doubt.

In reply to these submissions on ground (1) Mr. Quallo, as I understand him, said that the Magistrate's Reasons for Decision disclosed a failure to properly assess important pieces of evidence in the record which could have assisted the Court at arriving at the same verdict; but he conceded that the phrase "ought to have known" had no place in the proper consideration of the case against the Appellant. Mr. Quallo further submitted that there was sufficient evidence to convict the Appellant by adverting to the doctrine of recent possession which is set out at section 95 of the Evidence Ordinance. This reads:-

"Possession by a person of property recently stolen is, in the absence of a reasonable explanation by that person as to how it came in his possession, some evidence that he either stole it or received it knowing it to have been stolen according to the circumstances of the case, but if the accused gives an explanation which raises a reasonable doubt as to his guilt, the judge shall direct the jury that it ought not to say that the case has been proved to its satisfaction on that evidence alone."

Mr. Quallo pointed out that the Magistrate could have properly rejected the Appellant's explanation on the grounds that it was not reasonable.

So that it comes to this: The Crown concedes that the learned Magistrate was in error in setting out what requires to be proved in respect of an offence of Receiving contrary to Section 177 of the Criminal Code by interpolating "or ought to have known" in the phrase: ".... that he in the alternative received these articles in such circumstances that he knew (or ought to have known) that they were stolen."

Unfortunately the learned Magistrate gives no indication in his Reasons for Decision whether he gave consideration to the doctrine of recent possession and to my mind that was a serious omission on his part. For as Malone, C.J. said in Appeal No.4 of 1977, Primitivo Vasquez and Sgt. 79 Jerome Palacio:

"This, of course, is not a trial by Judge and Jury but the section applies nonetheless to a magistrate sitting alone as he has the dual function of Judge and Jury to perform and he must decide the facts and then apply the law to the facts as he finds them."

In the light of the learned Magistrate's misconception regarding the requirements of Section 177 of the Criminal Code taken with the fact that there is no indication on the record that the learned Magistrate at any time addressed his mind to the doctrine of recent possession makes the conviction unsafe and unsatisfactory. In view of this finding there is no need to deal with the other grounds of appeal.

It therefore follows that the conviction must be quashed and the sentence set aside, and the Appellant tried again before another Magistrate.

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