Rex v Gilani (Criminal Appeal No. 254 of 1945) [1946] EACA 68 (1 January 1946)

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

## REX, Respondent

## GULAMHUSSEIN HASHAM MOHAMED GILANI, Appellant Criminal Appeal No. 254 of 1945

Criminal law-Breaches of Regulation 119 of the Customs Regulations. 1926-Conflicting charges—Regulation 242—Proof.

The appellant was charged on an information containing two conflicting. counts for breaches of Regulation 119 of the Customs Regulations, 1926. The prosecution did not adduce any evidence at the trial and relied on section 242 of the Customs Ordinance, 1926, which provides that the averments of the prosecutor shall be deemed proved in the absence of proof to the contrary. The appellant gave evidence and called witnesses.

He was convicted on one of the counts and appealed.

- $\hat{H}$ eld (26-3-46).—(1) That S. 242 Customs Ordinance, 1926, constitutes the averments in the charges presumptions of law and places on the accused the onus of rebutting them. - (2) That although each count raises conflicting presumptions, they do not neutralize each other because each presumption applies to a different count.

Appeal dismissed.

Schermbrucker for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal against conviction for a breach of Regulation 119 of the Customs Regulations, 1926.

The appellant was convicted by the learned Resident Magistrate, Mombasa, on the first count in an Information which contained the two following counts:

COUNT 1.—Charge: Failing to comply with the provisions of Regulation 118 (g) of the Customs Regulations, 1926, by taking delivery of goods from Tanganyika Territory without first having Advice B, contrary to Regulation 119 of the Customs Regulations, 1926.

Particulars of Offence.—Gulamhussein Hasham Mohamed Gilani at Mombasa in the Coast Province on or about the 27th day of July, 1945, did take delivery of seven trunks of trade goods from Tanganyika without first having in his possession Advice B for such goods.

COUNT 2.—Charge: Being a person entering the territory and bringing with him goods from Tanganyika Territory and having no Advice B and failing to furnish within 24 hours to a Customs Officer, Administrative Officer or Police Officer a full and detailed list enumerating the net quantities and value of the goods or produce, his invoice to such officer, contra section 118 (1) and 119 of Customs Regulations, 1926.

Particulars of Offence.—Gulamhussein Hasham Mohamed Gilani on or about the 27th day of July, 1945, did enter the territory and did bring with. him seven trunks of trade goods and having no Advice B did fail to furnish within 24 hours to a Customs Officer, Administrative Officer or Police Officer? a full and detailed list enumerating the net quantities and value of such goods or fail to produce his invoice to such officer.

At the trial the Crown did not adduce any evidence, but relied solely on section 242, Customs Ordinance, 1926, which provides that the averments of the prosecutor shall be deemed proved in the absence of proof to the contrary. In other words this section constitutes the averments in the charges presumptions of law and places on the accused the onus of rebutting them. That being so it is contended on behalf of the accused appellant that as the presumption raised by the averment in the first count is admittedly in direct conflict with the presumption in respect of the second count they neutralize each other leaving thus no evidence at all against the appellant.

In support of this contention Mr. Schermbrucker has referred us to a passage in Hailsham, Vol. 13, at page 627, which states that "where two rebuttal presumptions of inconsistent character arise, they neutralize each other, and the matter must be decided on the evidence actually adduced". The authority for that statement is *Reg. v. Willshire* (1881), 6 Q. B. D. 366.

In that case the accused was charged with bigamy-there was only one charge—and on the evidence led by the prosecution two conflicting presumptions arose, one in favour of the duration of life of the accused's wife and the second in favour of innocence, i.e. the validity of the second marriage. The learned trial Judge held on those facts that the burden of proof was on the prisoner but stated a case for the opinion of the Divisional Court which allowed the appeal, Lord Coleridge, C. J., stating at page 369: "The Common Serieant did not leave the question to the jury, but on these conflicting presumptions, held that the burden of proof was on the prisoner, who was bound to adduce other or further evidence of the existence of his wife in 1879, thus withdrawing from the jury the determination of the fact from these conflicting presumptions.'

We can well understand that where two conflicting presumptions arise in respect of the same charge they may nullify each other, but the position seems to us to be vastly different when the conflicting presumptions are relied on for the purpose of two distinct charges. It is hardly necessary for us to quote any authority for the well-settled proposition that each count in an Information is for the purpose of evidence and judgment a separate Information (vide Archbold, 31st Ed., p. 51). Thus evidence relating solely to one count cannot be used in support of any other counts. Consequently in this case the inconsistent presumptions cannot be said to be really in conflict since when dealing with the first count the Court must have regard to the presumption peculiar to this count and disregard completely the presumption on the second count and vice versa.

For these reasons we think that the present case is clearly distinguishable from Reg. v. Willshire and that the argument based on it cannot succeed.

The second ground of appeal is on a question of fact. It is contended that the learned Resident Magistrate misdirected himself in rejecting the evidence of the accused as a tissue of lies and at the same time accepting his statement that he did not bring the goods with him.

In point of fact it is not very accurate to say that the Magistrate branded the whole of accused's evidence as a tissue of lies. What he said was: "I consider I have said enough to show that accused's evidence as to why the trunks were in the passage and where he got the goods which were found in them, is a tissue of lies."

This is a different matter. Be that as it may that part of the accused's evidence denying the bringing of the goods into the Colony is supported by other evidence and the Magistrate was justified in accepting it in the circumstances. In the result we are not prepared to say that the Magistrate drew any unreasonable inference from the evidence or misdirected himself in any way. We dismiss the appeal.