R v Nako and Two Others (Criminal Review Case 1 of 1932) [1932] ZMHCNR 2 (31 December 1932)

[Vol. I R. v. NAKO AND TWO OTHERS. A Criminal R eview Case of 1932. Charge o f theft under Penal Code section 243—conviction entered under Penal Code section 287 for being found in possession of property suspected to have been stolen— such conviction not permissible. Where a person is found in possession of property which he is suspected to have stolen, the correct charge is Theft (con. Penal Code section 243) if the owner of the property is known and owner­ ship can be proved; if the owner is not known then the charge should be laid under Penal Code section 287, which makes it a mis­ demeanour for a person to be found in possession o f property believed to have been stolen and of which such person cannot give an account to the satisfaction of the Court before whom he is brought. In the judgment of Mr. Justice Hall which follows it will be noted that the learned Judge says, ” . . . In a charge o f stealing the onus o f proof is always on the prosecution; whilst under section 287 the onus is on the accused to give an account to the satisfaction o f the Court. . . . ” This must not be taken to mean, and the learned Judge presumably had no intention that it should mean, that the prosecution is not always required to make out a prima facie case o f guilt. On this point see Mandavu v. R. 1962 R. & N. 298. Since the introduction o f the present section 174 (1) (c) into the Criminal Procedure Code by Ordinance 28 of 1940, the dictum in the present case that on a charge o f theft there cannot be a conviction under section 287 of the Penal Code is no longer law. Section 174 (1) (c) o f the Criminal Procedure Code is as follows: “ When a person is charged with stealing a thing and the facts proved amount to an offence under section 287 o f the Penal Code he may be convicted of the offence under that section although he was not charged with it But, although the present case was not cited, the dictum therein to the effect that section 287 cannot be used where the owner o f goods is known was affirmed in 12. v. Morgan Kaonga 5 N. R. L. R. 580. For further cases on section 287 o f the Penal Code see R. v. Esau Mwewe 75 post; R. v. Chibuye Chitala 2 N. R. L. R. 116; R. v. Second Ngona 5 N. R. L. R. 67; Zimba v. Reg. 1957 R. & N. 870. Hall, J. (extract from judgment on review): On a charge o f theft there cannot be a conviction under section 287. In a charge o f stealing the onus o f proof is always on the prosecution; whilst under section 287 the onus is on the accused to give an account to the satisfaction o f the Court, as to how he came by the goods in question. Where the owner o f goods is known the only charge that should be laid is one of stealing B Vol. I] or dishonestly receiving. A charge under section 287 will n ot lie when the owner o f the goods is known, since in that case there is no room for reasonable suspicion that the goods are stolen, the ow ner being able to say definitely whether or not the goods are his. Conviction quashed.