Attorney-General v. John Hannah Khoury (1953)

LawGlobal Hub Lead Judgment Report – West Africa Court of Appeal

Minerals Ordinance, Chapter 114—Sections 60 and 61—Possession of mineral— Onus to prove lawful possession.

Facts

The Minerals Ordinance, section 60, provides that no person (with exceptions not relevant here) shall possess any mineral (which by definition in section 2 includes diamonds).

Section 61 makes a person found in possession liable to punishment if he “does not prove to the satisfaction of the Court that he obtained such mineral lawfully”.

A police officer searching the respondent found in his pocket diamonds tied up in a small cloth and cautioned him saying he, the officer, had reason to believe ” these are rough diamonds ”, to which the respondent replied, ” Yes, they are not mine, I amcarrying them forJohn Jacobs Jacobssaid, ” Yes, he is carrying
them for me”.

At his trial the respondent said that when Jacobs gave him the parcel to carry he “felt some stones” but did not know what they were. And Jacobs testified that on respondent asking him what was in the parcel he said to respondent, “Keep it first and after ten minutes I shall tell you my reason”.

The Magistrate regarded the respondent as untruthful and did not believe that he did not know what the bag contained. The respondent was convicted and appealed to the Supreme Court.

The Judge thought that the Magistrate erred on the facts and acted on wrong principles; that he ought to have been satisfied by the explanation of the respondent and Jacobs. The conviction was set aside and the Attorney-General appealed from the Judge’s decision on the grounds that the respondent’s answer to the police officer was an admission that he knew what the bag contained and that the onus of proving innocent possession lay on the respondent, who failed to satisfy the Magistrate. For the respondent it was argued that guilty knowledge was essential and the Magistrate ought to have accepted the respondent’s
explanation.

Held

A person found in possession of diamonds contrary to section 60 of the Minerals Ordinance does not discharge the onus shifting to him under section 61 by giving an explanation which may reasonably be true but must actually satisfy the Magistrate that it is true; in this case the Magistrate did not act on wrong principles nor ought he to have been satisfied by the explanation offered by the evidence for the defence, and the conviction ought not to have been set aside.