R. v. Alphonce Mwendagungi and Others, Crim. App. 37-DDM-72, 2/6/72, Mnzavas, J.

 

R. v. Alphonce Mwendagungi and Others, Crim. App. 37-DDM-72, 2/6/72, Mnzavas, J.

The four respondents were jointly charged with various offences against the Fauna Conservation Ordinance, Cap. 302, including five counts of unlawful possession of government trophies c/ss 49(1) (2), 47(1) (e) and 53 (1) (a) (i). They were acquitted on all counts, the trial court holding, inter alia, that the charges had not been proved beyond reasonable doubt. Appeal by the Republic against the acquittals on the charges of unlawful possession.

            Held: (1) “With respect I agree with the learned magistrate that in criminal cases the burden of proof is, (unless there is a provision to the contract), always on the prosecution to prove a charge against an accused beyond all reasonable doubt. But with even greater respect to the learned magistrate it is clear from his judgment that he totally failed to see that section 49(2) of Cap. 302 tilts the burden of proof to the disadvantage of an accused charged with being in unlawful possession of Government trophy c/s 49(1). Section 49(2) of Cap. 302 says: “In ay proceedings against any person for an offence under this section the onus of proving lawful possession or dealing shall be upon such person.” As it was held by the court of appeal in R. vs. Francis Kioko (1971) H.C.D. n. 431, when there is a specific provision in a statute putting the burden of proof on an accused, an accused has the duty to prove his innocence on a balance of probabilities not merely to establish that his story is more likely to be true.” (2) Appeals against acquittals allowed as regards three of the accused and record returned to trial court with directions to convict.