Ismail v Reginam (Criminal Appeal No. 104 of 1954) [1955] EACA 342 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (Vice-President), DE LESTANG and WINDHAM, JJ. (Kenya)

## MOHAMED HASSAN ISMAIL, Appellant (Original Accused)

## REGINAM, Respondent

## Criminal Appeal No. 104 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Paget Bourke, J.) Firearms Ordinance, section 4 (1)—Evidence—Burden of proof as to possession

of firearm certificate—"Especially"—Indian Evidence Act, section 105 (1) as amended by Evidence Act (Amendment) Ordinance, 1936.

The appellant was convicted in the magistrate's court upon two counts under section $4(1)$ of the Firearms Ordinance, for being in possession of a firearm and ammunition without the requisite certificate for them. At the trial, his possession of the firearm and ammunition was proved and admitted, but no evidence was led by either side as to the requisite certificate. The police evidence called by the prosecution, and accepted, was that when the appellant was asked to produce his current firearm certificate he said that he had it, but although given every opportunity, failed to produce it and was only able to produce a certificate for the previous year.

On first appeal, the Supreme Court, following the English decision in $R. v.$ Oliver, held that the burden of proving that he had the firearm certificate was upon the appellant being an averment "peculiarly" within his knowledge.

It was decided in another English case, viz. *Putland v. Sorrell*, distinguished from $R$ . $v$ . Oliver, that unless there is an absolute prohibition against doing the act in question, followed by words of exception within whose scope the accused may bring himself, the Crown must adduce at least prima facie evidence that the accused has not done that which would make his act no offence.

Section 4 (1) of the Firearms Ordinance reads "Subject to the provisions of this Ordinance, no person shall purchase, acquire, or have in his possession any firearm or ammunition unless he holds a firearm certificate in force at the time."

Section 105 (1) of the Indian Evidence Act, as re-enacted for the purpose of its application to Kenya by the Evidence Act (Amendment) Ordinance, 1936, reads: "When a person is accused of any offence, the burden of proving the existence" of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him."

*Held* (13-5-55).—(1) The possession by the accused person of a firearm certificate fell twice within section 105 (1) aforesaid, being a fact "especially" within his knowledge, and, also, a circumstance bringing the case "within the exception or exemption from" the operation of section 4(1) of the Firearms Ordinance, so that the burden of proof was upon him.

(2) "Especially" in section 105 (1) aforesaid has a meaning wider than "peculiarly" as referred to in $R$ . $\nu$ . Oliver, and less favourable to an accused person, but even if the matter fell to be dealt with under the English authorities it would not avail the accused person because section 4 (1) aforesaid creates an absolute prohibition followed by words

of exception, so that the burden of proof as to possession of the certificate was in any of exception, so that the birden of proof as to possession of the connecte way in any event upon him under $R$ . $\nu$ . Oliver, being "peculiarly" within his knowledge, whilst even if the burden of proof were as in *Putland* of the police evidence that the accused had failed to produce a valid firearm certificate<br>although given ample opportunity of doing so, which was prima facie circumstantial evidence that he did not possess such certificate

(3) While it is not, in law, necessary, where an accused person is charged with possessing a firearm without a valid certificate, for the Crown to call any evidence to<br>establish that he had no such certificate, nevertheless, as a matter of practice, the Crown should adduce some direct evidence on this point.

Appeal dismissed.

Cases referred to: R. v. Oliver, (1944) K. B. 68; Putland v. Sorrell, (1945) 31 C. A. R. 27; Fateh Ali Shah Mushhad, (1940) 7 E. A. C. A. 41; Badurdin Mohamed v. R., E. A. C. A. Criminal Appeal 203 of 1952.

Morgan for appellant.

O'Beirne for respondent.

JUDGMENT (prepared by Windham, J.).—This appeal was dismissed by us on 21st April, 1955. We now proceed to give our reasons for the dismissal.

The appellant was charged and convicted in the magistrate's court upon two counts under section 4 (1) of the Firearms Ordinance, 1953, namely being found in possession of a firearm and of ammunition without holding a current firearm certificate for them. The argument addressed to us in this case, which came before us upon second appeal, was confined to a single question of law, namely upon whom the burden of proof lay to establish whether or not the appellant was in possession of the necessary firearm certificate.

At the trial the appellant's possession of the firearm and ammunition was proved and admitted. But as regards the necessary certificates no evidence was adduced by either side. The Crown called no evidence to establish positively that the appellant did not hold them, while the appellant, who gave sworn evidence, neither produced them nor even stated that he possessed them. The police evidence called by the prosecution, which was accepted, was to the effect that the appellant, when asked to produce his current firearm certificate (i.e. the certificate for 1954) had stated that he had got it, but although given every opportunity, he had failed to produce it and was only able to produce a certificate for the previous year, 1953. On this evidence, or lack of evidence, the trial magistrate applying the principle laid down in the English courts in R. v. Oliver (1944) K. B. 68, held that the burden of proving that he possessed the firearm certificates lay on the appellant, who had failed to discharge it, and he was convicted accordingly. On first appeal this decision was upheld, the learned Judge of the Supreme Court holding that the principle laid down in $R$ . v. Oliver that the burden lies upon an accused of proving an averment lying peculiarly within his knowledge, had been correctly applied.

Section 4 (1) of the Firearms Ordinance reads as follows: -

"4. (1) Subject to the provisions of this Ordinance, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a firearm certificate in force at the time."

Now we have considered the principle laid down in $R$ , $\nu$ . Oliver, and we have also taken note of the argument addressed to us by Mr. Morgan for the appellant that some inroads have been made into that principle by the later decision of the Court of Criminal Appeal in *Putland v. Sorrell* (1945) 31 Cr. App. R. 27, wherein $R. v.$ Oliver was distinguished and it was laid down that unless there is an absolute prohibition against doing the act in question, followed by words of exception within whose scope the accused may bring himself, then the Crown must adduce at least prima facie evidence to show that the accused has not done that which would make his act no offence; which in the case before us would mean that it lay upon the Crown to adduce prima facie evidence that the appellant did not possess a current firearm licence. We do not, however, find it necessary to go deeply into the English authorities regarding the burden of proof in such cases, since in our view the matter is governed by the local law, and the English decisions are to be resorted to for guidance only. But as this case was decided, both by the court of trial and upon first appeal, upon the authority of R. v. Oliver, we would simply say that in our view not only is this a case where the charging section does create an absolute prohibition followed by words of exception, as in the case of $R$ . v. Oliver, but further, that even if it were not, and if the burden of proof were as laid down in Putland v. Sorrell, then the Crown would still have discharged it, because the police evidence that the appellant failed to produce a valid firearm certificate, although given ample opportunity of doing so did in our view, constitute prima facie circumstantial evidence that he did not possess such a certificate. In short, we consider that even had the English law applied, this case was rightly decided.

The matter, however, is in our view governed not by the English law, though this may properly be resorted to for guidance, but by the local law, namely section 105 of the Indian Evidence Act, as re-enacted for the purpose of its application in Kenya by the Evidence Act (Amendment) Ordinance, 1936, and as judicially interpreted by this Court. The relevant portion of section 105, as so re-enacted, is the first paragraph of sub-section (1) which reads as follows:-

"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him.'

In the present case we think that the possession by the appellant of a firearm licence is a matter which falls twice over within the above provision, for not only is it in our view a circumstance bringing the case "within an exception or exemption from" the operation of section 4 (1) of the Firearms Ordinance, but also it is a fact "especially within the knowledge of" the appellant. The word<br>"especially" is a wider one than "peculiarly", which is the word used in the general rule as to negative averments under the English law as laid down in $R$ . $v$ . Oliver, namely, that the burden lies upon an accused of proving such facts as lie peculiarly within his knowledge. Even "peculiarly", as interpreted in the English courts, does not mean "exclusively", and it covers the case where it would be easy for the accused to prove the fact but would be more difficult, although still possible, for the Crown to do so. "Epecially" has a meaning even wider than "peculiarly", and less favourable in this connexion to an accused. It would certainly, in our view, cover the present case, where the person who could most easily give proof as to the appellant's possession of a firearm certificate would be the appellant himself. Although, by reason of the existence in Nairobi of a Central Firearms Bureau for Kenya, the Crown could no doubt prove without difficulty the issue or non-issue of such a certificate to the appellant by referring to that Bureau, it would be still easier for the appellant to produce the certificate if he possessed one.

That the possession of a firearm certificate by the appellant would not only be a "circumstance bringing the case within an exception or exemption from the operation of" section 4 (1) of the Firearms Ordinance, but would also be a "fact especially within his knowledge", for the purpose of section 105 (1) of the Indian Evidence Act, is supported by the decision of this Court in R. v. Fateh Ali Shah Mushhad (1940) 7 E. A. C. A. 41. In that case the accused had been charged and convicted of an offence under section 5 (1) of the Gold Trading Ordinance of Tanganyika (Cap. 104 of the Laws of Tanganyika), which provides as follows:—

"5. (1) No person, other than a licensed gold dealer, shall buy any raw gold."

There was no evidence in that case that the accused was not a licensed gold dealer, nor any evidence that he was. A "licensed gold dealer" is defined in that Ordinance to mean the holder of a gold dealer's licence under the same Ordinance and to include a company licensed as a banker under the Trades Licensing Ordinance; thus the question whether the accused was a licensed gold dealer was easy of proof by himself, and almost as easy of disproof by the Crown. In upholding the conviction upon second appeal this Court in its judgment said: -

"Our opinion is that in a case of this kind where a person is charged with buying gold without having a licence it is for that person to discharge the onus of proof by showing that he has a licence. The case falls within the exact language of section 105 of the Indian Evidence Act as amended and applied to Tanganyika. There was much consideration given in the High Court to whether the fact of the possession of a licence was or was not "especially within the knowledge of such person", the appellant. The learned Chief Justice held that the fact was especially within his knowledge. While we agree with this finding our view is that the case might have been decided on the earlier words of the section to the effect that it was for the appellant to prove that he came within the exception to the law by showing that he had taken out a licence."

$\mathbf{I}$

We find ourselves in full agreement with the views expressed by this Court in the above case, which we hold to be indistinguishable from the present case in everything relevant to the basis of the decision.

We have also thought fit to draw attention to a more recent judgment of this Court in Badurdin Mohamed v. R., Criminal Appeal 203 of 1052. In that case the accused was convicted of the offence of exporting maize without a valid permit, contrary to the Kenya Government Proclamation No. 35 of 1949. Upon second appeal this Court supported the conviction on the ground that the question whether the accused had a permit was one lying peculiarly within his knowledge. In the judgment the following passage appears: -

"In the appeal to this Court it has been submitted that the Judges in the court below erred in looking at the English cases because the matter is covered by section 106 of the Indian Evidence Act, which is an Act applied to the Colony of Kenya. Unfortunately for the success of this submission it has been overlooked that by section 3 of the Evidence Act (Amendment) Ordinance (Chapter 12, Laws of Kenya), the application of section 106 was limited to civil proceedings. The section therefore has no application to the present point. We can see nothing wrong therefore in the Judges taking the English cases into consideration."

Now, in so far as the above passage indicates that the English cases may be taken into consideration for the purpose of guidance, we consider that it correctly sets out the legal position. But in so far as it might suggest that the Indian Evidence Act has no application to questions of the burden of proof of negative averments in criminal cases in Kenya, it is misleading, and its failure to refer to section 105 of that Act as amended by Ordinance would seem to have been an oversight. It is true that section 106 of the Indian Evidence Act, as applied to Kenya, has been limited to civil cases and is thus inapplicable. But the provision in section 106 that "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him" is duplicated in section 105 (1) as re-enacted and applied to Kenya, which applies to criminal cases and which provides that: "When a person is accused of any offence ... the burden of proving any fact especially within the knowledge of such person<br>is upon him." This appears to have been overlooked *per incuriam* by this Court in its judgment in Badurdin Mohamed v. R. The position, as we have already stated, is that these matters are governed by section 105, as interpreted by the courts in this territory, while the English decisions are to be resorted to for guidance only.

For these reasons, the appeal is dismissed. In conclusion, however, we would observe that, while it is not in law necessary, where an accused person is charged with possessing a firearm without a valid certificate, for the Crown to call any evidence to establish that he had no such certificate, nevertheless we consider that as a matter of practice the Crown would be well advised to adduce at least some direct evidence on the point, as, for instance, by testifying that there is no record in the Central Firearms Bureau of any issue of a certificate to him. We understand that this is the usual practice and that its omission in the present case was due to an oversight. We think the practice is a good one.