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Charles Isaboke v. R., Crim. App. 298-A-69, 30/1/70; Platt J.



Charles Isaboke v. R., Crim. App. 298-A-69, 30/1/70; Platt J.

The appellant was convicted of hunting a game animal without a licence c/ss 12(1) and 53(1) (e) (ii) of the Fauna Conservation Ordinance Cap. 302. The charge concerned a leg of a “kure” (a waterbuck) found in the appellant’s possession. As waterbuck is one of the animals set out in the Third Schedule of the Ordinance, it would therefore be an offence under section 12 to hunt it without a licence. Although the appellant was found in possession of the leg of a waterbuck, as he admitted, the dispute was whether he had hunted and killed the animal. His claim was that he had been given it by the witness Remi denied that, but two defence witnesses supported the appellant. There was no evidence at all that the appellant was seen hunting or had the means to hunt. The learned Magistrate disbelieved the defence and held that the inference to be drawn from the facts was that the appellant had hunted the animal whether or not it was clear what means he had used. He thought that the lack of evidence as to how the appellant had hunted the animal was immaterial.

            Held: “The main issue on the appeal was whether the inference drawn was certain beyond reasonable probable doubt. It is of course familiar law that if the prosecution seeks to rely on circumstantial evidence, the inference of guilt must be irresistible and incompatible with innocence. In the instant case, even if the learned Magistrate disbelieved the defence, all that was proved was possession of a leg of a waterbuck. Such possession could be accounted for either by purchase of receipt as well by hunting the animal. I agree with the learned State Attorney that the evidence did not conclusively point to the fact that the appellant had hunted the animal, and it seems to me that the absence of evidence as to how the appellant had hunted it, was not immaterial but indeed one of the facts which left open a possible inference of innocence.” Appeal allowed and conviction quashed.

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