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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V8) 1 CLR 4
1908 January 25
[TYSER, C.J. AND BERTRAM, J.]
REX
V.
TOGLI NICOLA.
CRIMINAL LAW-CRIMINAL LAW PROCEDURE AMENDMENT LAW, 1886, SEC. 20-POSSESSION OF PROPERTY REASONABLY SUSPECTED OF BEING STOLEN-BURDEN OF PROOF-STATEMENT BY ACCUSED PERSON-CYPRUS. COURTS OF JUSTICE ORDER IN COUNCIL, 1882, ART 124.
A person charged with being in possession of property, which in the opinion of the Court is reasonably suspected of being stolen, must prove that he came by it lawfully.
In determining whether the property is reasonably suspected of being stolen, the Court may take into consideration the fact that the accused made contradictory statements as to how he came by the property when he was found in. possession of it.
In determining whether the accused has proved that he came by it lawfully, the Court may take into consideration the fact that he neglected when called upon for his defence to make any statement to explain his possession of the property.
This was an appeal from the District Court of Paphos.
On the 2nd January, 1908, the prisoner was charged under Sec. 20 of the. Criminal Law and Procedure Amendment Law, 1886, with being in possession of certain goat's meat and a goat skin, reasonably suspected of being stolen property.
It appeared that a man called Redif Rejeb having missed certain goats from his flock, the Police, after making enquiries, visited the house of the accused.
They found the door of the house bolted, and on obtaining admission discovered the accused eating goat's meat. On being asked where he obtained it, he said that he had bought it from a man whom, he did not know.
Next day the accused informed the Police that he had given a false account of the manner in which he came by the goat's meat. He now said that he had slaughtered a goat of his own flock, but, that having done so without a teskere, he had been afraid to admit the fact to the Police on the previous day He added that he had sold some of the meat of the slaughtered goat to a forest officer at Stavrou. The forest officer, who was called by the prosecution, confirmed the fact that the accused had sold him goat's meat, but the prisoner's account of the circumstances under which the goat was slaughtered, as given to the forest officer, seem to have differed in some respects from the account given by the accused to the Police.
A headless goat skin was also found near the prisoner's house, but as the evidence of the identification of the goat skin was conflicting and unsatisfactory, it appeared from the notes of the President that the Court did not attach any importance to this part of the case.
The accused on being called upon for his defence, said he did not desire to say anything. His advocate said that his client had already given his explanation of his possession of the meat in his previous statements. No witnesses were called for the defence.
The District Court convicted the prisoner and sentenced him to six months' imprisonment.
The accused appealed.
Theodotou for the Appellant.
Amirayan for the Crown.
The Court dismissed the appeal.
Judgment: The evidence in this case would perhaps be not strong enough to support a conviction of theft, but this is not a prosecution for theft. It is is a case in which the law casts a special onus on the accused person.
The law declares that a person who has in his possession any movable property reasonably suspected of being stolen property shall be liable to imprisonment unless he establishes to the satisfaction of the Court that he acquired the possession of it lawfully.
In this case the prisoner first gave a false account of how he came by the meat in question, and afterwards gave a different account, and this second account again differed from a third account which he had previously given to one of the witnesses in the case. These conflicting accounts may legitimately be taken into consideration in determining whether the property was reasonably suspected of being stolen and it is impossible to say that there was no element of suspicion in the case.
Under these circumstances the burden is thrown upon the accused of satisfying the Court that he acquired the possession of the property lawfully. He does nothing. He merely relies upon his previous conflicting explanations. He calls no witnesses. Nor does he tender himself for examination. It is impossible therefore to say that he has discharged the onus which the law casts upon him.
The law does not require a person on his trial to make a statement and submit himself to cross-examination, but it allows him to do so, and where he is tried under an enactment which expressly puts upon him the responsibility of clearing himself from suspicion, his neglect to come forward and give a full explanation which may be sifted by the examination of the Crown and the Court, may tell very seriously against him.
We mention this point because it seems to be the general practice of advocates to advise those whom they are defending on these charges, not to make any statement.
The appeal must be dismissed and the sentence confirmed.
Appeal dismissed.