ARISTODHIMOS MICHAEL ALIAS TSAOUSHIS ν. THE QUEEN (V21) 1 CLR 100

(1)(c); secondly, under the Firearms Law (Cap. 86) section 3

(1)(b); and, thirdly, under the Explosive Substances Law (Cap. 83) section 4

(4)(d). The trial Court held that mens rea was an element in the 1st and 3rd counts but not under the Firearms Law, section 3

(1)(d). The appellant was accordingly acquitted on counts 1 and 3 and convicted on the second count. Upon appeal, Held:

(1)Mens rea is a necessary element in a charge under the Firearms Law section 3

(1)(b).

(2)(

1. a)The finding of the trial Court that the transaction had not proved mens rea was justified by the facts. The evidence of connivance by an accused must go to show that the accused person not merely connived at some undetermined illegality but the accused connived at the commission of the offence with which he is charged or possibly a kindred offence. (
2. b)Where a statute makes it an offence to be in possession of an article and when such an article is found in the possession of an accused person the fact whether he knew or did not know that the article was in his possession is a fact peculiarly within his knowledge and the burden of proof is on him. (
3. c)Since the appellant had discharged the burden of proof that he had no mens rea, the conviction and sentence was set aside. Appeal allowed. Appeal by accused from the judgment of the Special Court of Nicosia (Case No. 47/55). A. Indianos and N. Pelides for the appellant. H. G. A. Gosling, Crown Counsel, for the respondent. The facts sufficiently appear in the judgment of this Court which was delivered by: HALLINAN, C. J.: The appellant is a porter. On the 19th November last he was given a sack by a man called Philimis to carry from a bakery shop in Ktima to a place called Napoleon's cafe. A policeman as a result of some information followed the appellant and saw him enter Napoleon's coffee shop. The policeman thereupon reported the matter and the police went to the cafe and asked the appellant what he had done with the sack. He denied having brought such a thing to the cafe. Eventually the sack he had been seen carrying was found underneath some other sacks inside the building and when opened was found to contain a bren gun with three magazines and two barrels and two packets containing ammunition. On the issue as to whether the appellant was in possession of the sack while at Napoleon's coffee shop the trial Court has this to say: "It appears that in this case the accused was in effective possession and control, he was waiting there near where the sack was with the intention of handing it over to Philimis when he came, and there is no suggestion that the owner of the coffee shop or anybody else might have intervened to prevent the accused from handing over that sack to Philimis when he came. And, of course, the evidence shows that appellant had been actually carrying that sack. On that evidence I have no hesitation in finding that the accused was in possession of that sack." The accused denied that he knew that the sack contained firearms. He had asked Philimis: "Does it contain pieces of iron or what?" And Philimis replied, "It is none of your business. Take it where I tell you and stay there and I shall pass by that place and put it in my car and take it away". The learned trial Judge in his summing up states: "When questioned by me the accused said that at the time when Philimis gave him the sack he did not suspect that it contained anything illegal and that it was after the police had come and questioned him that he suspected that it contained something illegal and he got afraid". On the issue as to whether the appellant knew that he was carrying a firearm the trial Court after reviewing the facts states: "I come to the conclusion that at any rate at the coffee shop, after he had been questioned by the police, the accused had a guilty mind. He tried, he did his best, to avoid the finding of that sack.... In my judgment mens rea must be actually connected with the property which is the subject matter of the charge.... I am not satisfied that he knew what the contents of the sack were...." The appellant was charged under three different statutes. On the first count of being in possession of property belonging to Her Majesty without lawful authority or lawful occasion contrary to section 3

(1)(c) of Chap. 28; on the 2nd count for being in possession of firearm contrary to section 3

(1)(b) of the Firearms Law Chap. 86; and on the 3rd count for being in possession of explosive substances without licence contrary to section 4

(4)(d) of the Explosive Substances Law Chap 83. The trial Judge being of the opinion that mens rea was an essential element which had to be established before the appellant could be convicted on the 1st and on the 3rd counts acquitted him on these counts as he was not satisfied that the appellant knew what the contents of the sack were. The prosecution had submitted that mens rea was not an essential element but the trial Court rejected the submission particularly in view of the provisions of section 3

(1)(c) of Chap. 28 which enables the accused person to escape liability by establishing lawful authority or lawful occasion and the provision in section 4

(4)(d) of the Explosive Substances Law which a makes it lawful to be in possession of explosives under licences. However, he considered that section 3

(1)(b) of the Firearms Law contained an absolute prohibition and that the legislator intended that an offence should be committed by a mere act of possession whether or not the possessor had a guilty mind. The trial Judge states, "Looking at the section which was repealed when this section came into force I find that the importation of a rifle was absolutely prohibited. I do not think, looking at this new section, that it is designed to be any less stringent than the old one". It should be observed, however, that although under the repealed section 3 the importation of rifles and certain types of air guns was absolutely prohibited, their possession is not declared to he absolutely prohibited but is simply an offence under the section. The penalty under the repealed section was three years or £100 fine or both. The new section 3 as amended by Law 32 of 1955 provides "no person shall import, export or have under his control or in his possession certain weapons mentioned in the section." The penalty is increased to seven years imprisonment or a fine not exceeding £500 or both. Considerations which might lead a Court to interpret a penal section as excluding mens rea were set in the case stated by the Justices to the King's Bench Division in Harding v. Price

(1948)1 A.E.L.R. at p. 283, and these considerations were mentioned by Lord Goddard at p. 284: "The omission of any reference to intent or guilty knowledge therein, the greater precision of modern statutes, and the public evil of the offence disclosed in the information when compared with the smallness of the penalty prescribed by the law therefor". Later in his judgment Lord Goddard at page 285 states: "I should however add that the authorities show that even where the statute imposes what is apparently an absolute prohibition, as absence of guilty knowledge may in some cases be a defence; Sherras v. De Rutzen is one instance and R. v. Sleep and Hearne v. Garton are others. Such cases depend on the wording and purpose of the particular statute, and it is unnecessary to consider them in detail." Further light on the historical tendencies which have caused legislators to dispense with the element of mens rea in certain cases is contained in the following passage taken from Kenny's Criminal Law 1952 at p.36: "The general proposition that mens rea must be presumed to be a necessity in any crime created by statute was at one time so fully accepted that it used commonly to be stated that nothing but express words or a very strong implication in the statute itself could rebut the words or a very strong implication in the statute itself could rebut the presumption. But in the latter half of the nineteenth century the policy of the legislature moved towards a more minute regulation of social life by the creation of many non-indictable offences carrying a relatively light punishment, and defined in the statutes with greater exactitude than had formerly been the practice". Lastly, among the general considerations to be borne in mind when determining whether a penal enactment excludes mens rea there is the following passage in 10 Halsbury, 3rd Ed., para. 509, based on the judgment of Wright J. in Sherras v. De Rutzen: "Statutory offences of strict liability. Most statutes creating a strict liability fall under three heads. First, where the acts are not criminal in any real sense, but are prohibited under a penalty in the public interest. Secondly, where the acts are public nuisances; thus, an employer has been held liable on indictment for a nuisance caused by workmen without his knowledge and contrary to his orders. Thirdly, where, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right." It is interesting to compare the manner in which the carrying or possession of firearms or ammunition is dealt with in the Emergency Powers (Public Safety and Order) Regulations, 1955. Reg. 52 makes it an offence punishable by death or imprisonment for life to carry a firearm or ammunition without lawful authority but it is open to an accused person to prove reasonable excuse in mitigation of punishment; and Reg. 53 makes it an offence to be in possession of firearms or ammunition without lawful authority punishable with life imprisonment unless the accused can prove reasonable excuse. In other words, even in the present disturbed state of Cyprus, mens rea is relevant on a charge of mere possession of firearms and ammunition but there is a presumption of mens rea which can be rebutted by the accused. Having regard to the authorities already cited and to recent legislation "in pari materia" , we are unable to agree with the trial judge that it was the intention of the legislative authority to dispense with mens rea as an element in an offence under section 3

(1)(b) of Chap. 86. Although the three heads under which offences having no element of mens rea are grouped by Wright J. in Sherras v. De Rutzen are not necessarily exhaustive, it must be noted that the offence created by sec. 3

(1)(b) does not fall within any of these heads; nor is it, to use Kenny's words, "a non-indictable offence carrying a relatively light punishment" ; nor (referring to the passage cited from Harding's case) can it be said that the heavy penalty is small compared with the public evil of the offence. Nor is it probable that when the legislative authority in August, 1955, was substituting a new section 3 of Chap. 86 by Law No. 32 of 1955, it should have intended to exclude mens rea, since the same authority when making the Emergency Powers (Public Safety and Order) Regulations three months later created a similar offence for the possession of firearms and ammunition and expressly provided that an accused person might escape liability by proving reasonable excuse. Undoubtedly the Regulations have been drawn with greater precision as to mens rea and the burden of proof than section 3 of Cap. 86. The next point to be considered is whether, since mens rea is an element in an offence under section 3

(1)(b), the mere possession of the articles prohibited by that section shifts the burden of proof on to the accused to show that his possession is innocent. The authorities are cited by Lord Goddard at page 284 in Harding's case for the proposition that the omission of the words "knowingly or wilfully" may alter the burden of proof. This proposition is doubted by Devlin J. in Roper v. Taylor's Central Garages (Exeter) Ltd., 67 T.L.R., 284, but even Devlin J. agrees that the principle as stated in Stephen's Digest of the Law of Evidence, Art. 104, is correct, namely: "In considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively". There can be no doubt that where a statute makes it an offence to be in possession of an article and when such article is found in the possession of an accused person, the fact of whether he knew or did not know that the article was in his possession is a fact peculiarly within his knowledge and the burden of proof is on him. The trial Judge was not satisfied that the appellant knew what were the contents of the sack, although when the accused was at the coffee shop and after he had been questioned by the police the trial Court considered that he had a guilty mind to the extent that he had endeavoured to conceal from the police the fact that he had carried the sack; therefore, he obviously suspected that he had carried something unlawful. The trial Judge held that this kind of guilty mind was not enough and said, "In my judgment mens rea must be actually connected with the property which is the subject-matter of the charge". Counsel for the respondent has submitted that the trial Court misdirected itself on these issues; in the circumstances of this case the appellant had shut his eyes to the commission of an offence and hence having connived at it, he was guilty. He relied on the case of Redgate v. Hayes

(1)Q.B.D., 89. There the proprietress of a licensed premises was charged with "suffering" gaming to be carried on there in her hotel. Her servant who was in charge of the premises removed his chair to the greatest possible distance from the room where guests were gambling. It was held that the justices had sufficient evidence to find that the porter had connived at the offence and that the proprietress was responsible for his conduct. Counsel also referred us to the judgment of Devlin J. in Roper's case. However, we agree with the trial Judge that the evidence of connivance must go to show that the accused person not merely connived at some undetermined illegality but connived at the commission of the offence with which he is charged, or possibly a kindred offence. Here the appellant's connivance might have related to receiving and carrying stolen property which cannot be said to be kindred to the offence of being in unlawful possession of firearms. Since then mens rea is an element in a charge under section 3

(1)(b) of the Firearms Law and the appellant has discharged the burden of proof which lay on him, his conviction and sentence must be set aside. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο