White v Commissioner of Police

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Matthew, J.A.
• Judgment Date: 08 May 1992
• Neutral Citation: MS 1992 CA 2
• Docket Number: Magisterial Criminal Appeal No. 5 of 1991
• Date: 08 May 1992

White

and

Commissioner of Police

Floissac, P.; Byron, J.A.; Matthew, J.A. (ag.)

Magisterial Criminal Appeal No. 5 of 1991

Court of Appeal

Criminal law — Subsubject: Theft — Appeal against conviction for dishonestly appropriating a female sheep, with the intention of permanently depriving the owner of it — Sheep found in possession of appellant — Points of appeal have no merit — Appeal dismissed.

Appearances:

Mr. K. Allen for the Appellant.

Mrs. G. Thom for the Respondent.

1 Matthew, J.A. (AG.): On November 5, 1991 the Appellant was convicted at the Magistrate's Court, Plymouth before His Worship Mr. H. E. Sergeant for that he between the 25th September, 1991 and 14th October, 1991, did dishonestly appropriate one female sheep valued at $180.00 EC, the property of Peter Hogan, with the intention of permanently depriving the said Peter Hogan of the said sheep, contrary to Section 210(a) of the Penal Code No. 12 of 1983. He was fined $250.00 to be paid within one month or in default one month's imprisonment.

2 On November 13, 1991 the Appellant gave notice of appeal against the decision of the learned Magistrate. The Appellant advanced two grounds of appeal, namely:

• 1. The decision is erroneous in point of law;

• 2. The decision is unreasonable and cannot be supported having regards to the evidence.

3 The brief facts of the case are that one Peter Hogan bought some time ago, a brown sheep from Leroy Meade and that in September, 1991 the sheep gave birth to a white ram lamb and that around the time of the General Election of Montserrat (October 8, 1991) he lost that sheep. He said he made a report to the police and continued to search for the sheep and that on October 14, 1991, he saw the sheep in a garden over which the Appellant had control. He said he observed a fresh mark on the sheep's ear. Leroy Meade stated that in March, 1991 he sold a sheep to Peter Hogan. Meade saw a sheep brought to him by Sgt. Hazel”. and Peter Hogan and he concluded it was the same sheep he had sold to Peter Hogan. He also testified as to the freshness of a mark on the ear of the sheep.

4 Christiana Meade, the wife of Leroy Meade, testified that Peter Hogan bought a sheep from herself and her husband. She gave the approximate date of sale as four or five months after Hurricane Hugo. We were told that the dates of the hurricane were September 17 and 18, 1989. Christiana said that on Monday October 14, 1991, she met Peter Hogan, some police personnel and the wife of the Appellant and she identified the sheep she had sold to Hogan.

5 Another prosecution witness, Dr. Gary Swanston, a veterinary officer, examined the sheep on October 15, 1991 and concluded that the uterus showed active signs that it was involuting from having given birth within the last 30–45 days, thus supporting the testimony of Peter Hogan.

6 In his examination in chief the Appellant stated that he came into possession of the sheep on October 6, 1991 having purchased it from David Ryan, also known as Rowdy Ryan, on that day.

7 It is not disputed that the sheep was found in the possession of the Appellant and it is equally clear that no one saw him steal the sheep from Peter Hogan. The charge of dishonest appropriation must therefore depend on the doctrine of recent possession.

8 In the 43rd edition of ARCHBOLD'S CRIMINAL PLEADING, EVIDENCE AND PRACTICE, Volume 2, paragraph 18–169 the learned authors deal with the topic, “RECENT POSSESSION AS EVIDENCE OF GUILTY KNOWLEDGE.” They state:

“The onus of proving guilty knowledge or belief always remains on the prosecution. Where the only evidence against the defendant is that he was in possession of recently stolen property, the jury...