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R. v. Mberesero Crim. App. 49-A-70; 8/6/70; Bramble, J.



 R. v. Mberesero Crim. App. 49-A-70; 8/6/70; Bramble, J.

The appellant was inter alia charged and convicted of Carrying passengers for hire or reward c/s 27A (i) of the Traffic Ordinance. The prosecution alleged that the appellant was carrying twelve persons, six of whom escaped when the vehicle was stopped. The appellant contended that he had only six, that he had a permit to carry fifteen employees and that at the material time he was carrying employees only. He called two witnesses who supported the fact that the passengers were employees. The law placed the burden on the appellant to prove that he was not carrying passengers for hire or reward. In deciding the matter the trial magistrate said:- “I fail to see how the accused has discharged this mandatory obligation which put simply, accused cannot shelve off hic shoulders upon which the provision of the law just cited, so squarely placed.”

            Held: (1) “The trial magistrate did not examine the defence to see whether it was true or whether it raised any reasonable doubt and seemed to have implied that the defence could never discharge the burden placed on it in cases of this kind. From the time the appellant was stopped he said that he was giving his employees a lift. This would shift the burden back to the prosecution and it did nothing to show that what the appellant said was not true or that, in fact the passengers were paying. (2) Appeal allowed on that count.

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