Supreme Court
Inferior Court Appeal No. 7 of 1979
14th February, 1980
Moe, J.

Mr. Dean O. Barrow, for the Appellant.
Mr. H. Elrington, for the Respondent.

Inferior Court Appeal - Charge of dishonestly receiving thirteen 16 gauge shot guns knowing the same to have been stolen - Guns found in room rented by Appellant to which other people had access sometimes during absence of Appellant - Whether mere presence of guns in room amount to possession - Whether Appellant had a duty to offer a reasonable explanation as to an innocent possession of the stolen articles - Onus of proof - Onus of proving guilty knowledge remains with the prosecution - Whether magistrate correctly directed himself - Appeal dismissed.

J U D G M E N T

The Appellant was convicted in the Magistrate's Court on an information which charged that he, between the 21st and 23rd day of December, 1976, at Belize City in the Belize Judicial District, dishonestly received thirteen 16 gauge shot guns, Savage Stevens brand valued at $1,352.00 Belize currency, the property of Santiago Castillo Ltd. knowing the same to have been stolen. He appeals from this conviction on the ground that the verdict was unreasonable and against the weight of the evidence.

2. The evidence led for the Prosecution showed that on or about the 23rd December, 1976 a quantity of shot guns belonging to Santiago Castillo Ltd. were stolen from the firm's department. On the 27th December, 1976, two plastic bags containing thirteen of these guns were found by the police in the presence of the Defendant in the ceiling of a room which the Defendant rents and occupies.

3. Counsel for the Appellant pointed out as the magistrate himself stated in his reasons for decision that the Prosecution's case depended on a finding of recent possession in the Defendant. That being the case, the decision was unreasonable and could not be supported from the various points of issue dealt with hereafter. His first submission was that the evidence did not warrant a finding that the Defendant was in possession of the thirteen guns. In the first place, he contends the magistrate was not justified in finding that the Defendant lived in the room, far less than he lived there all alone. This finding of fact is not warranted by the evidence. Three Prosecution witnesses including the Defendant's landlord and also the Defendant's witness gave evidence which shows that the Defendant does not live there. Mr. Barrow's submission, as I understood it, was that this wrong finding of the magistrate must have affected the finding that the Defendant was in possession. This wrong finding of fact in my view is not fatal. The evidence is that the Defendant is the tenant of the room and uses it, but that other persons had easy access to the room. Mr. Barrow further argued that the mere presence of the guns in the room which the Defendant occupies without more is not enough to establish possession in the Defendant, and particularly so when the evidence is that more persons than the Defendant used that room.

4. It is clear that mere occupation of premises without more is not sufficient to invest the occupant with the possession of articles found therein, but the something more may be "just a little more" and need not be substantial. See R v. Monica Williams 16 W. I. R. 74. The Magistrate does not state specifically in his reasons that he addressed himself to this issue, but he found and referred to factors which amount to adequate material from which the something more may be inferred in this case. These are the following factors (a) the quantity of guns and thus two bulky bags found; (b) the position of the two bags in the ceiling of the room; (c) the man-hole admitted into the ceiling being highly undetectable; and (d) the key to that room is kept at Defendant's residence. In my view, therefore, there was sufficient evidence from which the magistrate could have found that the Appellant was in possession of the guns which were found in the ceiling of the room which he occupies.

5. Mr. Barrow submitted, further, that even if it could properly be held that the Defendant was in possession of the guns, the magistrate again erred in law by misdirecting himself as is shown in the reasons for decision where he stated: - "In the absence of reasonable explanation from the Defendant as to an innocent possession of the stolen articles, the court may safely conclude that he dishonestly received them. To my mind, the Defendant's explanation was "nebulous." Later on he says, "The Court was not all impressed by the Defendant's explanation." It is wrong to suggest either that there is an onus on the accused in possession of stolen property recently after the stealing to give a satisfactory account of his possession, or that if the explanation given by him is not satisfactory, he should be convicted. The onus of proving guilty knowledge always remains on the Prosecution. It was laid down in R v. Aves 34 C. A. R . 159 that where the only evidence against the Defendant is that he was in possession of recently stolen property the jury should be directed that they may infer guilty knowledge (i) if the Defendant has offered no explanation to account for his possession of the property, or (ii) if he is satisfied that the explanation given is untrue. If an explanation offered leaves him in doubt as to the knowledge of the Defendant that the property had been stolen, the offence has not been proved and the verdict should be not guilty.

6. In this case, an explanation was offered. The evidence certainly does not justify in finding that the Defendant's explanation is nebulous. In his evidence the Defendant said that when the Police Constable found the two bags of guns, he the Defendant said, "I don't know nothing about this." The Defendant explained that he rents the room for the purpose of tailoring. That he teaches sewing there, that among his students are policemen. That he is out of Belize frequently and when he is out, the key to the room is left at his residence in charge of one Sylvester Crawford. That those who want to go to the room to sew get the key from Crawford and go to the room. Crawford gave evidence and confirmed this. The Defendant's landlord in his evidence for the Prosecution also stated the Defendant uses the room as a tailor shop. Sometimes for weeks he, the landlord, does not see the Defendant there, and when he does see the Defendant he sees other persons there including the Defendant's relatives.

7. The explanation therefore was, I don't know anything about the guns. I didn't put them there. It is possible that some other person who had access to the room could have put them there. Here again the magistrate does not specifically state that he was satisfied that the explanation given was untrue so that he inferred guilty knowledge on the part of the accused (which would be clearly in accord with the principle laid down in R v. Aves), but the magistrate was satisfied (or to use his own words, "he had no doubt in his mind") about guilty knowledge on the part of the Defendant. The explanation offered did not leave him in any doubt as to the guilty knowledge of the Defendant.

8. In the circumstances, I do not find that the magistrate's decision was unreasonable or cannot be supported having regard to the evidence. The appeal is therefore dismissed. Appellant to pay costs.

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