IN 1966, Mohamed Yusuf, who was found removing a louvre pane from a dwelling house to steal same, was convicted by a magistrate of breaking and entering a dwelling house with intent to commit a felony.

He appealed on the grounds that he could not in law be convicted of the offence charged since on the evidence adduced, it was not only possible for the appellant to have committed the offence of larceny of the louvre pane, but also there was sufficient evidence to establish an actual breaking for the purposes of the completed offence.

On appeal to the Full Court, constituted by Chief Justice Harold Bollers and Justice Van Sertima, that Court affirmed the magistrate’s conviction and sentence, and dismissed the appeal.

In delivering the judgment, Justice Bollers held that:

(i) Whether the actus reus amounts to a mere act of preparation or is an act sufficiently proximate to point, prima facie, to the commission of the completed offence is a question of law for the Magistrate to determine.

(ii) With regard to the issue of mens rea (guilty knowledge), this is a question of fact to be determined by the Magistrate in his capacity as judge of the facts.

(iii) There was sufficient evidence led to support the learned Magistrate’s finding that both the requisite actus reus and mens rea of an attempt had been satisfactorily established and, accordingly, his decision was a reasonable one.

The facts of the case disclosed that two policemen saw the appellant and another man loosening a bulb to the side of a house, outside of which they were in ambush, causing the light to go off. The other man then began to prise at a louvre pane of a window situate on the western side of the house, whilst the appellant, not more than one foot away, shone the beam of a torchlight on the said pane.

The other man was then seen to remove the louvre pane, and place it on the ground about three feet away from the building. At that point in time, a police van passed along the road and the two men jumped over the fence and ran away, but were subsequently apprehended and charged with the offence of attempt to commit a felony, to wit, breaking and entering a dwelling house with intent to commit larceny therein.

Delivering his judgment, Justice Bollers said: “In this matter, the appellant appeals against the conviction and sentence of the magistrate of the Georgetown Judicial District for the offence of Attempt to Commit a Felony, namely, to break and enter a dwelling house with intent to commit larceny therein, contrary to Section 36 of the Criminal Law (Offences) Ordinance, Chapter 10.”

Noting that there were three grounds of appeal, and that two had already been argued, Justice Bollers said: “The third ground of appeal relates to the sentence imposed by the magistrate and was not argued. The two remaining grounds were argued simultaneously with the leave of the court.

The grounds argued were:
1. The decision was erroneous in point of law because…

(a) The learned magistrate misdirected himself on the law relating to attempt;

(b) The learned magistrate acted on a wrong principle.

2. The decision was unreasonable, and could not be supported having regard to the evidence.”

The Chief Justice went on to say that the evidence led, and for that matter the facts as found by the learned magistrate, were that the householder gave evidence that the building was his dwelling house, and that he had not given anyone permission to remove the louvre pane from his window. He also stated that nothing was found to be missing from the dwelling house after the incident.

Said he: “It was submitted before us that, accepting all of the facts as found by the learned magistrate, the appellant could not in law be convicted of the offence as charged, namely, of attempting to break and enter the dwelling house with intent to steal.

“It was conceded by counsel for the appellant that so far as the evidence went, it was not only possible for the appellant to have been convicted of the offence of larceny of the louvre pane, but also that there was sufficient evidence to establish an actual breaking for the purposes of the complete offence. There was nothing before us to indicate whether the police had made a charge for larceny of the pane, but, if that had not been done, then it is, to our minds, a serious oversight on their part. There could have been no legal objection to both charges being laid.

“For the purpose of this appeal, the facts as found were that the appellant and another man were observed by two policemen late one night in a residential area. They jumped over the fence of a yard in which one Julian Cole had his dwelling house. The police went into ambush.”

According to the Chief Justice, “the householder gave evidence that the building was his dwelling house, and that he had not given anyone permission to remove the louvre pane from his window. He stated also that nothing was found to be missing from the house after the incident.

“It was submitted before us that, accepting all of the facts as found by the learned magistrate, the appellant could not in law be convicted of the offence as charged, namely, of attempting to break and enter the dwelling house with intent to steal.”

With respect to the charge as laid, Justice Bollers said as he affirmed the conviction and sentence of the magistrate: “It was contended that there was not an act sufficiently proximate to constitute the necessary actus reus required for the proof at an attempt.

“Counsel urged that the act that was required was one that should be unequivocally referable to the commission of the complete offence. Reviewing the evidence, counsel stated that it was not the contention of the prosecution that the hole made by the removal of the pane was large enough to accommodate either of the two defendants and that removal of the pane was the last act of the men that could be considered proximate. There was no evidence that either of the men had placed any part of their bodies into the space made in the window.

“There was, therefore, nothing more on the evidence from which it could be established that the men had any intention other than, possibly, to steal the louvre pane.

“It is self-evident that the appeal in this matter is based on the two main approaches to the ingredients of the offence, namely, the legal requirements of the offence and the determination of the factual issues. The two elements of the law with respect to criminal attempt are often so inextricably bound up ; that it may be difficult in some cases to consider separately , particularly where, as here, the learned magistrate had the dual responsibility of determining both the questions of law and the questions of fact.”

Senior Counsel, Mr. Rex Mc Kay represented the appellant, while Senior Crown Counsel, Mr, N Graham appeared for the respondent.