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IN 1961, a case of unlawful possession failed on appeal because the charge, which must specify the animal, only referred to carcass. The requirement of the law is that conviction must state that the defendant had not satisfied court of lawfulness of possession as required by Summary Jurisdiction (Offences) Ordinance Chapter 14 s. 95.
Section 95 of the Summary Jurisdiction (Offences) Ordinance, Chapter 14, creates the offence of unlawful possession of the carcass of any of the animals referred to in Title 7 of the Ordinance .
The appellant was convicted under s. 95 , but the statement of offence merely referred to a “carcass” while the particulars of offence referred to “a quantity of meat” .
The conviction did not state that the appellant had not satisfied the court that he came lawfully by the meat.
At the trial evidence was led of the recent larceny of a sheep and that the meat was mutton. On appeal from the order of the Full Court affirming the conviction (at page 60 herein)
It was held:
(i) the charge was bad since it did not refer to an animal mentioned in title 7 of Chapter 14 ; it was not sufficient to refer to the property merely as a carcass or as a quantity of meat;
(ii) the conviction should have stated that the appellant had not satisfied the court that he came lawfully by the part of the sheep found in his possession.
(iii) where there is a charge of unlawful possession under section 95 of Cap. 14 evidence that a larceny of similar property to that the subject of the charge should not be led.
Appeal allowed.
Attorney-at-law Krishna Prasad appeared for the appellant
Mr. E.A. Romao, Senior Crown Counsel, for the respondent
Judgment of the C ourt: In this case the appellant was charged under s. 95 of the Summary Jurisdiction (Offences) Ordinance , Cap. 14 ,the marginal note of which reads “unlawful possession of animal or part thereof”.
The statement of offence was “unlawful possession of carcass , contrary to s. 95 and in the particulars he was charged with being found in circumstances of suspicion with a quantity of meat . He was convicted under s. 95 and the conviction merely records that he was found in circumstances of suspicion with a quantity of meat, contrary to s. 95.
The evidence was that a man called Reuben Ali missed one of his sheep on the 29th of June and there was the evidence of two witnesses, Robert Gossai and Dolphin Seelall, that two men , the appellant and the man jointly charged with him (Harry) , were seen each carrying a bundle containing raw meat , and Gossai said that having seen them he went to a reef over the railway line and there he saw a sheep head and skin which were fresh .
He reported the matter to Reuben Ali and it was reported to the police .
The prosecutor , Constable Beaton , then executed a search warrant and in the kitchen of the appellant he found some mutton which had been boiled and some similar meat on the floor. The appellant, before the constable could pick it up , threw it out the window where apparently it was consumed by dogs.
The defendant did not make any attempt to satisfy the court that they had come lawfully by this meat but they relied on certain legal submissions .The magistrate referred in his reasons to the evidence of Reuben Ali who had lost his sheep and to the evidence of Gossai and Selall, and, of course , the evidence of the prosecutor , Beaton , and found that the charge was proved, On appeal the Full Court affirmed that conviction and now it has come before this court – (The Federal Supreme Court).
Many grounds of appeal have been argued but it is only necessary to consider two, The first is that there are obvious defects both in the charge and in the conviction.
The property , the subject of the charge has not been so described as to bring it within s. 95 ,because under that section the animal must be of a kind mentioned in Title 7 of Cap. 14 and it is not sufficient to refer to that property merely as a carcass or a quantity of meat.
Moreover, in the conviction it should have been stated tha the appellant had not satisfied the court that he came lawfully by the part of the sheep found in his possession, so that a very drastic amendment would have to be made both to the charge and to the conviction if this conviction is to be upheld. That might be done under s.24 of the Summary Jurisdiction (Appeals) Ordinance Cap. 17 and under the powers vested in this court by s. 33 of the Federal Supreme Court (Appeals) Ordinance,No. 19 of 1958.
However according to Justices Hallinan, Lewis and Marnan of the Federal Supreme Court, However, the difficulties of the respondent do not end there. In our view where there is a charge of unlawful possession under s.95 evidence that a larceny of similar property to that the subject of the charge should not be led.
The only relevant evidence on a charge under s.95 is evidence of circumstances of suspicion relative to the defendant’s possession.
Counsel for the espondent has referred us to s. 41 (4) of the Summary Jurisdiction (Procedure) Ordinance , Cap. 15,and that reads as follows.
‘where unlawful possession under section 94 of the Summary JURISDICTION (Offences) Ordinance is charged and the evidence establishes the commission of the offence of larceny of any kind , or of receiving stolen property, the defendant shall not be entitled to have the complaint dismissed, but may be convicted of the larceny or of receiving stolen property and shall be punished accordingly.”
“We consider that the ground of appeal is one of substance.. The evidence of the owner of the lost sheep, Reuben Ali, should not have been admitted and in the circumstances, both having regard to this piece of inadmissible evidence and to the errors and omissions in the charge and conviction, this appeal should be allowed and the conviction and sentnce set aside Appeal allowed.”
