Criminal Appeal No. 166 of 1956
;
Criminal Appeal No. 167 of 1956
Judges
Forbes J,
Rudd J
Judgment date
1 January 1956
Language
English
Type
Judgment
Flynote
Criminal law-Burden of proof-Moving maize without a permit during the hours of sunset and sunrise contra sections 2 and 4 of the Movement of Maize Order, 1953, vide Government Notice No: 1451/53-Presumption of guilt:
Case summary
The two accused were convicted under sections 2 and 4 of the Movement of Maize Order, 1953 (Government Notice No. 1451/53). A lorry containing 56 bags of maize was stopped by the police at night at about 2 a.m. The two accused were sitting with another man (the driver) in the cab of the lorry. No permit to move maize was produced either to the police or to the Court. One of the accused, on being stopped, replied that the load was maize.
The appellants neither gave evidence themselves nor called witnesses on their behalf.
The magistrate held that there was a strong presumption that Accused 1 and Accused 2 were, if not the owners of the maize, a party to its movement illegally during the hours of darkness.
Held (19th September 1956):
The burden of proof rests on the prosecution, and it is not for an accused person to prove his innocence. Where facts proved, however, are such as to raise a probable presumption of guilt, a Court is, in the absence of any explanation, entitled to convict.
Here, the commission of the crime has been proved, and facts have been proved from which the complicity of the appellants in the crime may, in the absence of any reasonable explanation of those facts, be inferred. No explanation was attempted by the appellants, and in the circumstances, the conviction was justified.
Case cited: Peck v. R., Mombasa Cr. App. No. 11/1956.
Appeals dismissed.
[Editor’s Note: Directions on burden of proof are commented on in R. v. Rees (21 Cr. App. R. 35); R. v. Blackburn (1955) 39 Cr. App. R. 84; R. v. Hepworth and Fearnley (1955) 39 Cr. App. R. 152; R. v. Summers (36 Cr. App. R. 14); R. v. Murtagh and Kennedy (39 Cr. App. R. 72).]
Counsel:
Chawla for the appellants.
Charters, Crown Counsel, for the Crown.
Reported by:
A. Q. Malik, Esq., Resident Magistrate, Nairobi.
