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John v. R. Crim. App. 55-A-70; 8/6/70; Bramble, J.

 


John v. R. Crim. App. 55-A-70; 8/6/70; Bramble, J.

These are appeals against conviction and sentence on each of two charges of Burglary and Stealing and they are consolidated. The facts not in dispute are that the complainant’s house was broken into at night time and several articles were stolen; this took place on the 13th September, 1969 and later that month the Police searched the appellant’s house as a result of information received; there they found several items which the complainant claimed as his but could only point out two shirts having satisfactory marks of identification. The other clothing he described by the colour only.

            Held: (1) “There was no evidence to connection the appellant with the offence apart from the fact that the complainant’s two shirts were found in the appellant’s room. While the trial magistrate said that he was satisfied that the complainant identified the

Other things found, there is no evidence on the record to show what satisfied him. The record must state from what facts the conclusion was drawn so that an appellate court can say whether such conclusion could or could not be supported. The only evidence of identification was colour and this was not conclusive or satisfactory.” (2) “The case against the appellant was that he was alleged to have been found in recent possession of two shirts which had been stolen in the course of a burglary. His possession was inferred from the fact that the articles were found in a room in which the appellant lived. The search was carried out in his absence and the prosecution did not say whether the room was found locked or not. The police received information that there were stolen articles in it and they went and found the articles. If the room was open anybody would have access to it and could plant the articles there. It was the duty of the prosecution to shut out this possibility and it did not. The next point would be whether the appellant claimed the goods as his own so that possession could be inferred. The appellant said that his room was never locked: that he was in another village and when he returned home he found his things missing and was told that the police had taken them. He did say that he had no stolen property in his house. If the appellant was in the house at the time of the search he would have been presumed to have possession and control of everything in the house and would have had to account for the stolen items. As it was, on the evidence no such presumption could be raised. There was no evidence of possession in the appellant.” (3) “The trial magistrate misdirected himself in holding that the accused failed to account as how the shirts came to be in his house. The misdirection was such as would occasion unjustice ….. Appeal allowed.

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