Hassan D. Fawaz v Commissioner of Police (MAG APP 23 of 1963) [1963] SLSC 54 (8 May 1963)

s. c.

REG. v. SAWYERR, SAWYERR AND THOMAS. Dobbs Ag.l. Freetown May 8,

Bankole J ones I. in the matter I think they would be dispelled by the case of Poole v. Reginam [1960] 3 All E.R. 398 where the corresponding provision of the Kenya Criminal Code relating to entry of nolle prosequi, which is similar in wording to our section 37 of Cap. 39, was considered. The one information was subsisting and another had been signed before the nolle prosequi was entered. The Privy Council held that the only proceedings which were discontinued as a result of the entering of the nolle prosequi were the proceedings under the information in which it was entered, and that if the second information took effect from the date of signature, it was not rendered invalid by the existence at that moment of the former information. It is true that in that case the nolle prosequi was entered later on the same day as the second information was signed and that the second information was filed after the nolle prosequi had been entered. I do not, however, think this affects the matter and I hold that case No. 1002 was a subsequent proceeding within the meaning of section 37 of Cap. 39 so as not to be barred by the entry of the nolle prosequi. The application is accordingly dismissed. Counsel may address me on the question of costs. [SUPREME COURT] HASSAN D. FAWAZ v. COMMISSIONER OF POLICE THE ATTORNEY-GENERAL v. HASSAN D. FAWAZ [Magistrate Appeal 23 I 63] Criminal Law-Dealing in diamonds contrary to terms of licence-Purchase of diamonds from unauthorised persons-Dates of purchases matter of speculation Credibility of witnesses. Unlawful possession of diamonds--Whether licensed dealer can be in unlawful possession of diamonds within dealing area-Length of possession of diamonds- Burden of proof. Alluvial Diamond Mining Act (Cap. 198, Laws of Sierra Leone, 1960), ss. 2, 12 (9),

The accused was charged in a magistrates' court on twelve counts with violating certain sections of the Alluvial Dia.n10nd Mining Act (the Act). After a trial, he was found guilty on counts two through six and discharged on the others. Accused appealed to the Supreme Court against his conviction. and the Attorney-General appealed against accused's discharge on counts seven through eleven. In counts two through six, accused was charged with dealing in diamonds contrary to the terms of his alluvial diamond dealer's licence in violation of sections 18 (3) and 24 of the Act. Section 12 (9) (a) of the Act provides that the holder of a dealer's licence is entitled to purchase diamonds either from another holder of a dealer's licence or from the holder of a mining licence, and it was alleged that accused had purchased diamonds from unauthorised persons on January 14, and February 2, 23 (twice) and 27, 1963. Accused's records indicated that he had purchased diamonds on January 14 and February 2 and 23 from one Bachil!y, and on February 23 and 27 from one Kondeh. Both Bachilly and Kondeh were persons from whom accused lawfully could purchase, but Bachilly testified that he had sold to accused only once in

and once in February, without stating on what dates. Kondeh testified Januarv ~ . that he had sold diamonds to accused only once, on t<ebruary 15, and he derued · · sold •o accused on February 23 and 27. haVlfl 0 e.. C;unts seven through el~ven ~~barged the acc~sed wit? unlawful possession of diamonds contrary to sectwn .<;I of the Act, whiCh provides: " A person shall be guilty of a contravention of this section if he is in uossession of diamonds and he fails to prove u'1at he is lawfully in possession • of such diamonds : Provided that- . · · (c) where an area has been declared to be a diamond non-dealing area, the holder of an alluvial diamond deaier's licence shall not be deemed to be lawfully in possession of diamonds, unless such diamonds have not been in his possession for a period exceeding one month and are in his possession- (i) outside such diamond non-dealing area; or (ii) within a diamond non-dealing area, under and in accordance with the terms and conditions of a written permit issued to him for that purpose by an area superintendent or ... by a warden .... " The magistrate held that accused's possession was iawfui because it was within a diamond dealing area. Held, allowing the appeals as to counts 2, 3, 4, 7, 8, 9, lO and 11 and dismissing the appeal as to counts 5 and 6; (1) that, since Bachilly was unable to state the exact dates on which he had sold diamonds to the accused, the ~agistrate's conviction of the accused on counts 2, 3 and 4 was " a matter of speculation~"

(2) That the magistrate was correct in convicting the accused on counts 5 and 6.

(3) That the magistrate " misdirected himself in. iaw in holding that a licensed dealer cannot be in unlawful possession of diamonds within a dealing area.

(4) That the magistrate was correct in holding that a diamond dealer is entitled to have in his possession diamonds for any period in a dealing area; and

(5) That, with regard to the diamonds which were the subject of counts seven through eleven, the magistrate erred in failing to call on the accused to satisfy the court that he had come by the diamonds in accordance with the provisions of section 12 (9) of the Act. Note: The part of this decision upholding the conviction of accused on counts 5 and 6 was reversed by the Court of Appeal on August 12, 1963 (CTiminal Appeal 19/63 sub nom. Attorney-Generai v. Fawaz). Cases referred to: Rex v. Oliver [19441 K.B. 68 ; Sierra Leone Finance Co. LttL v. Comptroller of Customs (1959) 16 W.A.C.A. 83 ; John v. Humphreys [1955) 1 W.L.R. 325; [1955] 1 All E.R.

793. Berthan l-Jacaulay for the accused. Donald Macaulay (Senior Crown Counsel) for the Commissioner of Police and the Attorney-General. B&"<K.OLE JoNEs I. The accused in the court below was charged on twelve counts with infringing certain sections of the Alluvial Diamond Mining Act (Cap. 198). At the close of the case for the prosecution, and after submissions made by counsel, the learned trial magistrate held that there was no case to answer as regards the first, seventh, eighth, ninth, tenth, eleventh and twelfth counts, and he thereupon discharged the accused on these counts. He, however, held that the accused had a case to answer in regards to the second to the

s. c.

FAWAZ v. CoM MISSIONER OF POLICE. Banknle Jones I. s. c.

FAWAZ v. CoM MISSIONER OF POLICE. Bankole Jones J. sixth counts inclusive. The trial proceeded as to these latter counts and the learned magistrate found the accused guilty on each and all of them and sentenced him to six months' imprisonment with hard labour on each count. The case now before this court is in the nature of cross appeals, first by the accused against his conviction and secondly by the Attorney-General against the accused's discharge but only as to counts 7 to i 1 inclusive. In the first appeal the accused is the appellant and in the second the respondent. In order to avoid confusion I will refer to him throughout this judgment as "the accused." Now as to the first appeal which relates to counts two to six inclusive. The accused was charged on each of these counts with contravening section 18 (3) and section 24 of the Act. Section 18 (3) reads as follows : " No person shall deal in aliuvial diamonds except under and in accordance with the terms of a prospecting right or of a licence granted under this Ordinance." Section 24 is the penal section and need not be set out here. The facts are that the accused is the holder of an alluvial diamond dealer's licence. It is conceded that the terms of his licence are to be found in section 12 (9) (a) of the Act which reads: " The holder of an alluvial diamond dealer's licence shall be entitled to (a) purchase alluvial diamonds from the holder of an alluvial diamond mining licence or from the holder of an alluvial diamond dealer's licence." In count 2, he is alleged to have bought on January 14, 1963, 1,300t carats of diamonds contrary to the terms of his licence, that is to say, that he did not purchase from either the holder of an alluvial diamond mining licence, or from the holder of an alluvial diamond dealer's licence. The third and fourth counts make the same allegation as to his purchase of diamonds but on different dates, namely, as to count 3, on February 11, 1963, 17 carats and, as to count 4, on February 23, 1963, 230 carats. The fifth and sixth counts make a similar allegation as to his purchase on different dates, namely, as to count 5 on February 23, 1963, 150 carats and as to count 6 on February 27, 1963, 63 carats. It is conceded that both A. M. Bachilly and A. M. Kondeh (who were the fifth and sixth prosecution witnesses, are persons who could lawfully sell diamonds to the accused by virtue of the licence each possesses. There is evidence that on each of the specific occasions on which it is alleged the accused bought diamonds, he said he issued receipts to them for such pur chases-see Exhibits " E" and " G " and that he entered the transactions in a register provided for that purpose-see Exhibits "A" and" H" respectively. Bachilly and Kondeh gave evidence in the court below. Bachilly's evidence was to the effect that he sold diamonds to the accused only once in January 1963 without stating what date it was, and also only once in February 1963, also without stating what date it was. It is to be observed that Exhibits "E " and " G " as well as " A " and " H " show that the accused bought from Bachilly four times in January and three times in February on specific dates including the dates alleged in counts 2, 3 and

4. Kondeh's evidence was to the effect that he sold diamonds to the accused only once and he produced a receipt for this sale-Exhibit "T "-which

8 that he sold 15 carats for £330 to the accused on February 15, 1963. shoW b f d d d f ·1 . t . E h"b" ,, E ., Th. transaction is to e oun recor e on a counter 01 rece1p m x 1 1t • - :son the register in Exhibits "A" and "H " respectively. He denied having an!~ diamonds to the accused on February 23 and 27, 1963, as recorded in the

,c~d's counterfoil receipts in Exhibit " E " and his register Exhibits " A " acc .. 0~ and " H" respectively. On these facts the learned magistrate found as follows: " I have listened carefully to the evidence of the prosecution and that of the defence. I have taken everything into consideration inciuding the demeanour of P.W. 5 and P.W. 6 and of the accused and D.W. 1 when they were in the witness box. The question to be decided at this stage is whether P.W. 5 and P.W. 6 were speaking the truth when they said that they did not deal in all the transactions as recorded in Exhibit ' E ' with the accused. As I have said earlier, that I have taken everything into consideration, I have observed nothing from the behaviour of either P.W. 5 or P.W. 6 when they were in the witness box to create any doubt in my mind that they were not truthful witnesses. On the other hand, I am quite certain the accused and D.W. 1 were not speaking the truth with regard to the transactions recorded in Exhibits • E ' and ' G.' I believe entirely the evidence of P.W. 5 and P.W.

6. The prosecution's case is that if the accused did not deal with P.W. 5 and P.W. 6 on all the occasions entered in Exhibits ' E ' and ' G ' the accused must then have dealt in diamonds with persons whom he should not deal with under the Ordinance. "Since I have come to the conclusion that both P.W. 5 and P.W. 6 were truthful witnesses and that the accused and his witness did not give truthful evidence, I agree with the prosecution that the accused must have dealt in diamonds with persons whom he should not deal with. I believe that :he accused, having dealt with persons whom the law prohibits him from dealing with, deliberately entered the names of P.W. 5 and P.W. 6 on all the occasions in Exhibits ' E ' and • G ' in order to deceive the proper officers who are entitled to call for his books to be inspected." Mr. Berthan Macaulay filed two grounds of appeal, namely: Ground 1: " Assuming that the learned trial magistrate's finding of fact can be supported, i.e., that the accused did not deal with P.W. 5 and P.W. 6, who are licensed miners, he erred in making the inference that the dealing must necessarily have been with persons who are not licensed diamond miners. No evidence is led that the dealing was with persons who are not diamond dealers." Ground 2: " That the decision was unreasonable and having regard to the evidence could not be supported." Now before examining the submissions made on either side, I think it is proper to mention that Mr. Donald Macaulay, Senior Crown Counsel, had to concede that the allegation in count 2 was not proved. He did not so concede as regards counts 3 and

4. It seems to me, with respect, that ~he magistrate erred in convicting the accused not only on count 2 but also m convicting him on counts 3 and

4. The evidence is that Bachilly sold

s. c.

FAWAZ v. COM MISSIONER OF POLICE. Bankole Jones

s. c.

FAWAZ v. CoM MISSIONER OF POLICE. Bankole Jones J. to the accused only once in January 1963, and once also in February 1963, without his specifying what dates. The accused records, as I have stated earlier, showed that Bachilly sold to him four times in January and three times in February on certain specific dates. Bachilly did not say on what dates his sales took place. It was, therefore, a matter of speculation, in my view, for the learned magistrate to have found that Bachilly's transactions took place on one specified date in January and two speci.lied dates in February. For these reasons I think the learned magistrate was wrong and I accordingly ailow the appeal and order the conviction and sentences on counts 2, 3 and 4 to be set aside. There now remain counts 5 and 6 for consideration. Mr. Berthan Macaulay submitted as to his ground 1 that the learned magistrate was misled by the prosecution as to the inference to be drawn from the facts in the absence of any evidence that the accused purchased either from the holder of an alluvial diamond mining licence or from the holder of an alluvial diamond dealer's licence. The pith of the prosecution's case was that the accused, being the holder of a diamond dealer's licence, was entitled to buy only from the persons described in section 12 (9) (a). The accused said he bought from A. M. Kondeh, a person who could lawfully sell. The !earned magistrate, having taken everything into consideration, including the fact that the accused swore that he issued receipts for his purchases and solemnly declared these transactions in a register required to be kept by the rules made under the Act for that purpose, found that he was not speaking the truth. He found that the accused deliberately entered the name of A. M. Kondeh in his books as regards the transactions on February 24 and 27, 1963, respectively, in order to deceive the proper officers who are entitled to call for his books to be inspected. He, therefore, drew the conclusion that the accused was guilty under section 18 (3) of the Act. I do not, with respect, agree with the submission of Mr. Berthan Macaulay because I think this was a case which involved the credibility of the witnesses. When once a challenge is made regarding an accused's dealings in diamonds, he has to satisfy the court that he complied with the provisions of section 12 (9) of the Act. If he fails, the irresistible inference is that his dealings were improper and unlawful. See Archbold, 35th ed., at para. 1012 and Rex v. Oliver [1944] K.B.

68. The learned magistrate, in my view, drew the correct inference from the facts. As to Mr. Berthan Macaulay's second ground, I find no substance in his