Rex v Mushhad (Criminal Appeal No. 115 of 1939) [1940] EACA 7 (1 January 1940)

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB, C. J. (Tanganyika)

## REX, Respondent

## FATEH ALI SHAH MUSHHAD, Appellant Criminal Appeal No. 115 of 1939

(Appeal from decision of H. M. High Court of Tanganyika in appellate jurisdiction)

Criminal Law—Evidence—Onus of proof—Fact specially within the knowledge of accused—Indian Evidence Act, section 105, as amended and applied to Tanganyika-Proof of licence or absence thereof under the Gold Trading Ordinance, Chapter 104, Laws of Tanganyika.

Appellant appealed from a conviction and sentence in respect of a charge that he not being a licensed gold dealer did buy raw gold contrary to the pro-<br>visions of section $5(1)$ of the Tanganyika Gold Trading Ordinance, Cap. 104. There was no evidence that the appellant had no licence to buy raw gold but the appellant in giving evidence at no time even suggested that he was a licensed dealer. It was not denied that the appellant had bought raw gold.

Held (26-1-40).—(1) That the possession of a licence under the Ordinance was a fact specially within the knowledge of the appellant and therefore that the onus of proof of it lay on him:

(2) that the matter might have been decided on the ground 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.

Appeal dismissed. $\bullet$

Barret for the Appellant.

Phillip, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—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. This is the only point of law involved in the appeal, so the appeal which is an appeal from the High Court of Tanganyika sitting in its appellate jurisdiction is dismissed.

£