OTTO GEORGE GFELLER Vs. KING

JUDGEMENT

(1.) The appellant, Otto George Gfeller, is a Swiss national. At Lagos, in July 1941 he was tried by the Supreme Court of Nigeria on a charge framed under S.427, Criminal Code of Nigeria, that he did on 20th February 1941 receive 156 bottles of Gordon's gin, knowing the same to have been stolen. He was convicted and sentenced to three years' imprisonment with hard labour. On appeal to the West African Court of Appeal his conviction was upheld but his sentence was reduced to 18 months' imprisonment with hard labour. From this decision, dated 6 November 1941 he appeals to His Majesty in Council by special leave. Their Lordships are informed that he has undergone the imprisonment to which he was sentenced. His learned counsel, Mr. Douglas, focussed a most careful and accurate review of the evidence by submitting, first, that there was no such evidence as could properly be left to the jury, and secondly, that the appellant's individual case had not been properly laid before the jury by the learned Judge in his summing up, with the result that the appellant did not have "the substance of fair trial." He maintained that his criticisms if made good would satisfy the conditions which in (1887) 12 AC 4591and other cases have been laid down as controlling the administration of the prerogative in criminal appeals. The trial was held before His Honour Judge Baker and a jury of twelve, of whom six were natives and six non-natives.

(2.) The appellant was the sixth out of seven accused. Against the first four, the prosecution case was that they participated in the theft of 18 cases of Gordon's gin from a certain customs warehouse on or about 17th February 1941. In fact the full number of cases stolen seems to have been 21. Each case contained 12 bottles. A charge of receiving was also framed against these four, but the primary charge on the evidence was one of breaking and entering a warehouse and stealing therein contrary to Ss. 390 (4) (c) and 413 (1), Criminal Code. One of these four was a superintendent in charge of the sheds from which the goods were taken: he was accused 2 and was acquitted. The main thief, according to the prosecution case, was a lawyer's clerk, called Adebowale (accused 1), accused 3 and 4, Vasco Dagama and Rufai Apena, being persons of the labouring class who were engaged in the removal of the goods. Those three persons were not only convicted by the jury of the charge of theft and warehouse breaking but also on the charge of receiving; and unfortunately, the trial Judge sentenced them upon both charges, imposing upon all three a sentence of four years' imprisonment with hard labour on the main charge and three years on the charge of receiving, these sentences to run concurrently. The West African Court of Appeal, holding that the charges were alternative charges, set aside the convictions on the main charge and maintained the convictions for receiving and the sentences of three years' imprisonment with hard labour. Their Lordships have considered whether this somewhat unfortunate complication affects in any way the validity of the conviction of the appellant. They are of opinion that it does not.

(3.) Of the three accused who were charged only as receivers, one was a Syrian named Jaffar (accused 5), who was charged with receiving 14 cases (168 bottles) and another was Nemi Hassan Saidi (accused 7) who, like the appellant (accused 6), was charged with receiving 156 bottles. Nemi was a person who had arranged with Adebowale for Jaffar to sell the gin. The reason given by him for so doing was that Adebowale owed him some ?112 and that he in turn owed ?100 to his cousin Ali Saidi. Nemi was charged with receiving on the footing that he had " aided in disposing" of the gin within the meaning of the last words of S. 427, Criminal Code. The appellant had bought the goods from Jaffar, against whom there is no allegation that he had been in trouble before, though it is no part of the appellant's case that Jaffar was, in fact, acting innocently in the transaction now in question. The appellant does not now seek to dispute either that he received 156 bottles of the gin on 20 February, or that these were part of the goods stolen by accused 1, 3 and 4 on 17 February. His case is simply that he did not know that the gin which he received had been stolen. He says that the Crown called no evidence to prove his knowledge, and claims further that he has given an explanation consistent with innocence which may reasonably be true and that it is not for him to prove his innocence. It is conceded by the Crown's case on this appeal that the evidence did not in any way implicate the appellant with the theft of the 21 cases or with the receiving by Jaffar of the 168 bottles nor did it show any association between the appellant and the convicted persons other than Jaffar.