Kassum v Reginam (Criminal Appeal No. 306 of 1955.) [1955] EACA 358 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Lowe, J. (Tanganyika)

## ABDUL ALI KASSUM, Appellant (Original Accused)

## $\mathbf{v}$ .

## REGINAM, Respondent

Criminal Appeal No. 306 of 1955

(Appeal from decision of H. M. High Court of Tanganyika, Crawshaw, J.)

Indian Evidence Act, section 114 (g)-Presumption-Doctrine of recent possession-"Onus"-Functions of first appellate Judge-Dispute as to credibility of witnesses and relevant facts.

The trial magistrate convicted the appellant of receiving. On first appeal the appellate Judge said: "Section 114 (of the Indian Evidence Act) example (g) has to be used cautiously, but I consider that the learned magistrate was entitled to draw an adverse inference against the appellant especially bearing in mind the special onus on an accused in a case of this nature, an onus which is not present in most criminal proceedings".

It was contended that the trial judge had misdirected himself as to the functions of a first appellate court. He had stated: "Learned counsel for the defence is quite right in saying that this Court is as well able to draw inferences as the trial court. I apprehend, however, that this Court should not interfere unless it is satisfied that those inferences are unreasonable or wrongly founded, even though it would not regard the inferences as so strong, perhaps, as did the trial court and might feel some doubt whether it would itself have convicted". A dispute arose out of the credibility of witnesses and relevant facts. The main issue to be determined by the trial court was whether the appellant's explanation as to how he came into possession and control of the stolen goods was a credible one.

$Held$ (10-8-55)—(1) If the first above-quoted comment related to "onus" in its usual sense then there had been a patent misdirection. However, the comment related to the presumption to be drawn from recent possession of stolen goods and was not a misdirection.

(2) There being a dispute as to credibility of witnesses and relevant facts, the first appellate judge was not referring to inferences to be drawn from undisputed facts or facts established by evidence accepted as true, but was referring to the conclusion drawn by the magistrate on the truthfulness or reasonableness of the appellant's explanation. He was entitled to say that he would not interfere therewith unless he was satisfied that it was unreasonable or wrongly founded, even though he, reading the record, might feel some doubt whether he would have come to the same conclusion.

Caldeira v. Gray and Benmax v. Austin Motor Co. Ltd. distinguished.

Appeal dismissed.

Cases referred to: Caldeira v. Gray, (1936) 1 A. E. 540; Benmax v. Austin Motor Co.<br>Ltd., (1955) 1 A. E. 326; Owners of the "P. Caland", (1893) A. C. 207; Mendip Range<br>Steamship, (1921) 1 A. C. 556; R. v. Gokaldas and another Fazelabbas and another $v$ . $R$ ., ante page 395.

Vellani, O'Donovan & Murray for appellant.

Summerfield (Acting Solicitor-General, Tanganyika) for respondent.

JUDGMENT (prepared by Worley (Vice-President)).—This is a second appeal brought under the provisions of section 325 of the Criminal Procedure Code of Tanganyika from a judgment of the High Court, which dismissed the appellant's appeal from his conviction by the Resident Magistrate of Dar es Salaam of receiving 100 bags of coffee, contrary to section 311 (1) of the Penal Code. The appellant was originally charged with the theft of approximately six tons of coffee, which was part of a consignment of Kivu coffee from the Belgian Congo dispatched by train from Kigoma to Dar es Salaam. The six tons of coffee were stolen en route and came into the possession and control of the appellant. The trial magistrate came to the conclusion that the evidence did not support a charge of theft but did not support a finding of receiving with guilty knowledge and in exercise of powers conferred by section 187 (1) of the Criminal Procedure Code convicted the appellant of this latter offence.

Before us the appeal has been argued on three points of law: —

- (1) That the High Court misdirected itself in its construction of the judgment of the trial magistrate. - (2) That is misdirected itself as to where the burden of proof lay. - (3) That it misdirected itself as to the functions of an appellate court on the evaluation of evidence.

The facts so far as material are as follows:—

The appellant is the active partner in Ali Kassam Virani Limited which does business in Dar es Salaam and Morogoro. Among its activities in Morogoro it buys local produce for resale, including coffee, mainly if not wholly from native growers in small quantities. The resident managers of the business in Morogoro are, or were at the material time, the appellant's younger brother and his nephew. The appellant lives in Dar es Salaam, but visited the Morogoro branch most week-ends. The wagon containing the coffee was sealed at Kigoma on 15th November, 1954, and was opened in Dar es Salaam on 23rd November when the seals were found to have been tampered with and the six tons missing. There was no evidence as to when or where during transit the theft took place. On either Friday, 19th or Saturday, 20th November the appellant visited the Morogoro branch and, according to his evidence, was informed by the managers there that they had six tons of coffee in the godown for resale. On the morning of the 20th he telephoned the United Africa Company, Dar es Salaam, offering the six tons, which were accepted. The coffee was sent down by road on the 22nd and placed in the United Africa Company's godown at Dar es Salaam. Samples were taken and the value of the coffee was assessed at Sh. 115 per frasila (16 kilos.). The appellant's evidence was that his company's purchases of coffee are strictly confined to that grown locally around Morogoro and that when he was informed of the six tons available for sale he assumed it had been thus acquired. In the High Court the learned Judge expressed the view that the trial magistrate's conclusion of guilty knowledge was drawn from adequate evidence of recent possession coupled with an explanation of innocent receipt which he did not accept as reasonable.

The first point which was argued before us was that the High Court had misunderstood the Resident Magistrate's judgment and that this, properly construed, meant that the Resident Magistrate had found guilty knowledge in the appellant at a time distinct from the time of receipt, and that the Resident Magistrate had not distinguished between the kind of evidence necessary to prove retaining as compared with receiving. This argument was based upon three passages in the trial magistrate's judgment. The first (page 68 of the record) is "To be told casually on a Saturday morning that the coffee available for sale amounts to nearly one-eighth of the firm's annual turnover and to refrain, as the accused apparently did, from making the most cursory query even out of

curiosity about this, is odd in the extreme, however little he concerned himself with the buying. Nor before picking up the telephone to open negotiations did he "look to find out or ask about the quality which in a consignment of six tons might have varied despite the eventual tender of only one sample". The second, on page 71 of the record, is: "I can only say that looking at the evidence as a whole the accused's explanation has raised no doubt in my mind that he knew when he offered this coffee for sale that it was stolen coffee". The third, at page 72, is: "The facts proved tend to show that he himself was not the thief but I have not the slightest doubt that he got and possessed the coffee knowing or<br>having reason to believe that it was stolen". Mr. O'Donovan contended that these three passages show that the magistrate did not clearly appreciate the difference between receiving and retaining and that it was sufficient to find that the accused had guilty knowledge at some stage. We agree with Mr. O'Donovan that he is entitled as a matter of law to argue that the judgment of the trial court does not bear the construction put upon it by the first appellate court. We also agree that to sustain a conviction for receiving alone it must be shown that the accused had the requisite guilty knowledge at the time of receipt. Nevertheless, we cannot agree with Mr. O'Donovan that the learned Judge on first appeal did misconstrue the judgment of the trial court. As Mr. O'Donovan conceded, his main difficulty, in seeking to establish the construction he would put upon the magistrate's judgment, is the short period of time which elapsed between the appellant coming into at least constructive possession of the coffee on receiving information from his managers and the time when he offered it for sale. This interval of time could not have been longer than a few hours and without going in detail through the various considerations which led the trial magistrate to reject the appellant's explanation, we think it is sufficiently clear that he was satisfied that the appellant must have known that the coffee was stolen as soon as he was informed of its presence in the godown. The expression "got and possessed" which Mr. O'Donovan criticized may not be very elegant English, but "to get" is a synonym for "to receive" or "to obtain", and we think the expression as a whole merely meant received and took into his possession and affords no ground for any argument that the learned magistrate misdirected himself.

The second point taken before us was that the learned Judge on first appeal misdirected himself on the onus of proof. This argument rests upon a passage in the High Court judgment where the learned Judge was referring to the absence of any evidence to support the appellant's explanation and, in particular, to the failure to call the two Morogoro managers who, according to the appellant's evidence at the trial, had originally acquired the coffee. In this connexion the learned Judge said: "Section 114 (of the Indian Evidence Act example (g)) has to be used cautiously, but I consider that the learned magistrate was entitled to draw an adverse inference against the appellant, especially bearing in mind the special onus on an accused in a case of this nature, an onus which is not present in most criminal proceedings". Mr. O'Donovan has contended that if the learned Judge means by "onus" what is meant in law by that word, then it is a patent misdirection and can only be defended by saying that the Judge did not mean what he said. The passage is certainly very unhappily worded but we think, taking the judgment as a whole and bearing in mind that the learned Judge had shortly before been considering the presumption which may be drawn from recent possession of stolen goods, he meant nothing more than to say that that presumption, if drawn, would justify a conviction unless the accused person can put forward an explanation which may reasonably be true; and that, when such an explanation is put forward, it is reasonable for the court to expect that, if there are available witnesses who might be expected to support it, if true, they will be called; and if they are not called the court may take this circumstance into consideration when assessing the reasonableness of the explanation. Moreover there is nothing in the

judgment of the learned magistrate to suggest that he in any way misdirected himself on the question of the onus of proof in this matter.

The third point taken before us was that the learned trial judge misdirected himself as to the functions of a first appellate court on the evaluation of evidence. This argument was founded upon the following passage in the judgment of the High Court (page 94 of the record): $-$

"Learned counsel for the defence is quite right in saying that this Court is as well able to draw inferences as the trial court. I apprehend, however, that this Court should not interfere unless it is satisfied that those inferences are unreasonable or wrongly founded, even though it would not regard the inferences as so strong, perhaps, as did the trial court and might feel some doubt whether it would itself have convicted."

In support of his argument Mr. O'Donovan relied upon the principles enunciated by their Lordships of the Privy Council in Caldeira v. Gray (1936) 1 A. E. R. 540 and upon certain observations of the House of Lords in Benmax v. Austin Motor Co. Ltd. (1955) 1 A. E. R. 326. As to the former case Mr. O'Donovan accepted the principles as set out in the editorial note, namely-

"In a non-jury case the appeal is in the nature of a rehearing and the Court of Appeal must rehear the case, reconsidering the materials which were before the Judge. The presumption is that the trial Judge is right on the facts and unless the Judge is satisfactorily made out to have been wrong, his decision will not be disturbed. Where questions as to credibility of witnesses arise, the appellate court is at a great disadvantage in that it neither sees nor hears them, and unless it can be shown that the Judge has failed to use or has palpably misused his advantage, the appellate court will not take the responsibility of reversing his conclusions. The Judicial Committee applied these principles in the present case. The point which arises here must not be confused with that which arises upon concurrent findings of fact by a trial Judge and by an appellate court. In such circumstances, upon a further appeal to a higher appeal tribunal, the latter will not, as a general rule, disturb those findings."

Then Mr. O'Donovan relied upon the following observations by Viscount Simonds in the Benmax case:-

"I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. Here, it must first be determined what the defendant in fact did, and, secondly, whether what he did amounted in the circumstances (which must 'also, so far as relevant, be found as specific facts) to negligence. A jury finds that the defendant has been negligent and that is an end of the matter unless its verdict can be upset according to well-established trules. A Judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or, to repeat what I have said, what is perception, what evaluation. Nor is it of any importance to do so except to explain why, as I think, different views have been expressed as to the duty of an appellate tribunal in relation to a finding. by a trial Judge. For I have found on the one hand universal reluctance to

reject a finding of specific fact, particularly where the finding could be founded on the credibility or bearing of a witness, and, on the other hand, no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the learned Judge. But the statement of the proper function of the appellate court will be influenced by the extent to which the mind of the speaker is directed to the one or the other of the two aspects of the problem."

As to the reluctance of higher courts to disturb concurrent findings of fact even where based on questions of inference and balance of probabilities, see Owners of the "P. Caland" (1893) A. C. 207 and Mendip Range Steamship (1921) 1 A. C. 556.

The two cases cited by Mr. O'Donovan are of the highest authority and must be accepted by this Court where they are applicable, but it must be borne in mind that in neither of those cases was there a question of credibility. In Caldeira's case Lord Alness in delivering the judgment of their Lordships, after citing with approval a passage from the judgment of Lord Wright in *Powell* v. Streatham Manor Nursing Home, where he said-

"Two principles are beyond controversy. First it is clear that in an appeal of this character, that is from the decision of a trial Judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal must, in order to reverse, not merely entertain doubts whether the decision below is right but be convinced that it is wrong."

went on to say-

"In order exactly to equiparate the decisions in these cases with the present case a conflict of testimony between the appellant and the respondent would be required. Here there is none."

And again in the Benmax case, after the passage above cited, Viscount Simonds goes on to say-

"In a case like that under appeal where, so far as I can see, there can be no dispute about any relevant specific fact, much less any dispute arising out of the credibility of witnesses, but the sole question is whether the proper inference from those facts is that the patent in suit disclosed an inventive step, I do not hesitate to say that an appellate court should form an independent opinion though it will naturally attach importance to the judgment of the trial Judge."

It is quite clear to us that there is an essential distinction between the two cases cited by appellant's counsel and the instant case. This was not a case where there was no dispute arising out of the credibility of witnesses or about relevant specific facts; indeed, the main issue to be determined by the trial court was whether the appellant's explanation as to how the stolen coffee came into his possession and control and his profession of ignorance as to where it had been obtained from was a credible one, and it is clear that the findings of the trial magistrate on that question must have been to some extent based on his impression of the appellant whom he heard and saw. So that although the learned Judge on first appeal speaks of drawing inferences he did not, we think, have in mind the question of drawing inferences from undisputed facts or from facts established by evidence accepted as true, but he was really referring to the conclusion drawn by the magistrate on the truthfulness or reasonableness of the appellant's explanation which, as we have said, must have depended to some extent upon the magistrate's impressions. We think therefore that the learned Judge was entitled to say that he should not interfere with that conclusion unless he was: satisfied that it was unreasonable or wrongly founded even though he himself, reading the record, might feel some doubt whether he would have come to the same conclusion. There is nothing in this passage which is at variance with what was said by this Court in R. v. Gokaldas and another (1949) 16 E. A. C. A. 116, or in the more recent judgment in Fazellabbas and Abdulla v. R., ante page 395.

For these reasons we think that this appeal fails on all three points and must: be dismissed.