Lal v Regina [1979] FJSC 40; Criminal Appeal No. 40 of 1979 (27 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Criminal Appeal No.40 of 1979

BETWEEN

CHANDAR LAL
s/o Devi Dutt Shankar
(Appellant)

AND

REGINA
(Respondent)

Mr. Shankar for the Appellant
Mr. D. Williams for the Respondent

JUDGMENT

The appellant was charged with possessing a cow over the age of 6 months without a brand mark contrary to section 4 of the Brand Ordinance Cap. 140. He pleaded not guilty but after hearing evidence, including evidence for the defence, the magistrate convicted him and fined him $5.00 or 5 days in default and made an order that the appellant should pay $5.00 costs.

He now seeks leave to appeal against his conviction on questions of law only. Ina very brief judgment the magistrate said "it is for the defence to prove that the cow was not over 6 months old. He admits he cannot prove its age. He only relies on his own experience which I do not consider sufficient. He has not called the donor whose name he cannot remember. I accept evidence of P.W.1 that he saw a cow apparently more than 6 months old. I find the case proved and convict as charged".

For the proposition that it was for the defence to prove that the cow was not over 6 months old the magistrate apparently relied on the case of R v Edwards (1974) 3 W.L.R. 285 which is one of a long line of cases in which the issue was whether the accused had or had not a licence or permit to do something for which a licence or permit was required by law, although the court in that case also considered the wider issue of exceptions to the general rule that the onus was always on the prosecution to prove every element of the offence. Section 205 of the Criminal Procedure Code might have been relevant in this regard but of course that section has now been repealed. The repeal of this section, which has been more or less a statement in statutory form of the old common law position, leaves it open to question whether the legislature intended a return to the old common law position.

But assuming that the old common law is reactivated, then an exception to the general as to the onus of proof always being on the prosecution, depends solely on the question of whether the enactment (i.e. Section 4 of the Brand Ordinance) prohibits the doing of an act – or the omission to do an act, subject to a proviso or exception.

The wording of the charge it self does not help because it charges the keeping of a cow over the age of 6 months without a brand mark. But section 4 itself as read with section 16 provides – "No person may keep any stock unless the same be marked with the brand of the owner.....

Provided that the provisions of this section shall not apply to any stock under the age of 6 months"

Only on the basis that there was a general ban on keeping unbranded cattle, but that there was an exception in the case of cattle under 6 months of age could it be argued that all the prosecution had to do was prove the accused kept an unbranded cow, and the onus shifted to the accused to prove that the cow was under 6 months. If the section has stated or could be construed as stating that it was an offence to keep any unbranded cow over the age of 6 months then this argument would no longer apply.

However even assuming that the onus did pass to the appellant, the onus is only on the balance of probabilities.

The magistrate said that the appellant admitted that he could not prove the age of the animal, but I don't think that was quite correct. He has not has the animal since birth and he said that it has been given to him, as a gift, he being a Hindu priest to whom calves were often given as gifts. But he said that when it was given to him it was no more than 3 months old, and he had even been told that it was 3 months old. He said that he did not know the age except from his own experience.

He also said that he had been given the animal 4-4½ months before he was interviewed. He was interviewed in January about 2 months after the date of the alleged offence, so that by his reckoning on 16/11/78 the animal would still have been under 6 months of age.

The magistrate said that he did not consider the appellant's experience to be good enough to judge the age of the animal. But the appellant said that he has been in farming for some time, besides which he was often given cattle or calves as gifts, so I do not think that his opinion can be dismissed so lightly as the magistrate has done.

On the other hand the evidence of P.C.885 (who was given no name) was that he considered the animal, one of three, to be over the age of 6 months- presumably the other two were unquestionably under 6 months, or were branded.

He professed some experience of cattle, but clearly he was in no better position than the appellant to judge the age of the animal. He was certainly no expert.

I consider that what the appellant said with regard to the age of the animal was entitled to rather more consideration than was given to it by the magistrate, and if he has given it more consideration it is not possible now to say whether he would have found on the balance of probabilities that the appellant had not discharges any onus that might have rested on him.

I accordingly allow the appeal, set aside the conviction, and sentence and the order for costs.

Sgd. (G.O.L. Dyke)
JUDGE

LAUTOKA,
27 July, 1979