CONSEQUENT to an appeal in which Doolarie, called Fatty, was in 1976 found guilty of a Bush Rum offence, the Appellate Court constituted by Chancellor Haynes and Justices of Appeal J. A. Luckhoo and Keith Massiah, set aside the conviction and sentence.

According to the facts, the appellant was charged with unlawful possession of spirits contrary to Section 89 (1) of the Spirits Act, Chapter 82:24 after the police found two bottles of “bush rum” on premises occupied by the Appellant and her husband.
One bottle was found in the yard while the other was found in a bath room in the yard. The Appellant was convicted of the offence and fined a sum of $750.
On appeal, it was held that the Full Court failed to consider the circumstances surrounding the actual finding of the bottle in the bathroom.
As such, the finding on the mental element of possession by the Full Court was based on an erroneous view of the evidence and on a misconception of the facts adduced in evidence by the respondent and so the appeal was allowed.
Mr.S. E.Brotherson appeared for the appellant and Mr. D. J. Christian, Assistant Director of Public Prosecutions for the respondent.
The facts of the case were that in a search executed by the police under a search warrant on premises occupied by the Appellant and her husband, the latter not being present at the time, three bottles containing liquid were found. In two of the bottles was bush rum. The search took place at Doorn Haag, Leguan on 2nd May, 1975 , at two O’ Clock in the afternoon.
As a result of the finding of bush rum, the Appellant alone was charged with, and convicted of, the offence of the unlawful possession of spirits contrary to Section 89(1) of the Spirits Act , Chapter 82:24 of the Laws of Guyana, and was fined the sum of $750.00.
The premises comprised a house, bathroom and yard.
The yard was enclosed by a barbed wire fence three feet in height attached to wallaba posts. The bathroom was a rod and a half away from the house and it was without a door. The neighbour to the west was, at the material time, not on terms with the Appellant.
The police party began their search in the yard. Sometime after, there was no evidence how long after, the Appellant excused herself saying that she wanted to urinate, and then went into the bathroom. Police Constable English (the Respondent) said he became suspicious and hurried behind the Appellant.
His evidence continued: “I saw her in the bathroom fumbling with a blue plastic bucket. I then upturned the bucket and found a large Eldorado rum bottle corked and containing a clear liquid.”
As the search continued, in a clump of grass in the yard another bottle, was found corked and containing a liquid and a third bottle with liquid was found under the kitchen portion of the house. The bottles were tendered and admitted in evidence as exhibits “A”, “B” and “C”. The bottles found in the bathroom and in a clump of grass in the yard contained bush rum. The remaining bottle had no bush rum. The Appellant denied that at the time of finding and at her trial a search was made of the house but nothing was found.
The Respondent admitted under cross-examination that anyone could have thrown the bottles which were found in the yard.
The Full Court held that so far as the evidence was concerned, with respect to the bottle with bush rum which was found in a clump of grass, it was equivocal and that had the charge been confined to that bottle only, to use the words of the Court, “it may well be the Appellant would have been dismissed.”
The appeal really centred on the finding of the bottle in the bathroom and the mental element necessary to be proved before a case could be said to be established against the Appellant for the offence charged.
The substantial question posed was this: Was it proven that the Appellant had knowledge that there was bush rum in the bathroom?
According to Chancellor Haynes, it was quite sufficient for the prosecution to prove facts from which it could be reasonably be inferred that the Appellant knew that she had the prohibited article in her possession.
There were facts proved in this case from which such an inference might be drawn, and also facts from which an inference of a lack of guilty knowledge might be drawn.
The Full Court, as a Court of rehearing did not based its judgment on inferences from the facts proved, but on findings due to a misconception of the facts proved.
The Magistrate, as the Full Court quite correctly observed , gave not the slightest assistance in his reasons for decision on this important aspect, but it would appear, he also had fallen into error because of his misconception of the evidence.
“We can see no reason to disturb the Full Court’s assessment of what the Magistrate had accepted and believed.
“The Full Court said that the Magistrate had based his decision on an acceptance and belief of the evidence that the Appellant was ‘caught red-handed attempting to cover up the bottle in the bath room ( … ) by placing plastic bucket over it.’ If, as we feel, the Full Court was right in saying that the Magistrate had so based his decision, then the decision could not be justified.
“We cannot conclude that the Magistrate would still have convicted, and that the Full Court would still have upheld the conviction, had both Courts not misconceived what was the evidence adduced in proof of the offence and so misdirected themselves on this vital issue of the mental element.
“All the above-mentioned possibilities and the circumstances giving rise to them were not considered by the Full Court because that Court had through its error of the facts surrounding the actual finding of the bottle misdirected itself on the issue of the mental element.
“For these reasons we find that it would be unsafe to uphold the conviction.
“The appeal is, therefore, allowed and the order of conviction and sentence set aside.”