THE Appellant Doolarie called ‘Fatty’ was charged with unlawful possession of spirits after the police found two bottles of bush-rum on premises occupied by she 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 by a magistrate and fined a sum of $750.00.
She appealed to the Full Court, which confirmed the magistrate’s conviction.
As a consequence she appealed to the Court of Criminal Appeal constituted by Chancellor J.O.F. Haynes and Justices of Appeal J.A. Luckhoo and Keith Massiah.

That Appellate Court held: The Full Court failed to consider the circumstances surrounding the actual finding of the bottle in the bath room. 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.

Mr. S.E. Brotherson for the Appellant.
Mr. D.J. Christian, Assistant Director of Public Prosecutions for the Respondent.
Justice of Appeal Luckhoo who delivered the judgment said: 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 S.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, bath room 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, at the material time, was 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 bath room. Police Constable English (the Respondent) said he became suspicious and hurried behind the woman.

His evidence continued, “I saw her in the bath room fumbling with a 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 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 bath room and in a clump of grass in the yard contained bush rum. The remaining bottle had no bush rum. The Appellant denied this at the time of finding and at her trial all knowledge of any of the three bottles 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 of 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 around the finding of the bottle in the bath room 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 proved that the Appellant had knowledge that there was bush-rum in the bathroom?

It does appear to us that the Full Court misdirected itself on this vital part of the case. Its finding on the mental element was based on an erroneous view of the evidence, on a misconception of the facts adduced in evidence by the Respondent.
Concluding his judgment, Justice of Appeal Luckhoo said: 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.
Chancellor Haynes: I concur in the order proposed in the judgment of Luckhoo J.A.
Massiah, J. A. : I concur.