Handling Stolen Goods

Handling Stolen Goods

So with the financial crisis that’s global, it seems economic to buy that second hand phone,laptop or any other electrical gadget from so called brokers, we purchase it without any question as to its origin more often than not it has been stolen thus no valid title passes to us upon purchase.

In law this is the principle of possession of stolen property, it applies to cases of theft and theft-related offences. A rebuttable presumption arises in Court when it believes in its wisdom that the person in possession of the goods knew or had reason to believe that the goods were stolen or otherwise unlawfully received. It doesn’t apply to where the possessor is not the thief, however if you are found with stolen property of which you cannot account for then it is presumed that you are the thief[1]or handler by receiving.

The possession raises a presumption of guilt in connection with any further crime.

Doctrine doesn't apply to all cases of theft. The general rule is that where it is proved that property has been stolen and very soon after the stealing the accused has been found in possession of it then it is open to the court to find him guilty of stealing or handling by way of receiving on the basis of the particular facts and circumstances of the case.

Ingredients of the offence:

1.      Ownership of the article

2.      Theft of the article

3.      Recent possession by the accused[2]

The burden is on the accused to explain and absence of a plausible explanation fuels the fire and leads to a likely conviction.

The time and application of the presumption is unlimited to time as it will vary according to the article that has been stolen. For instance 3 months has been held to be sufficiently recent for a motor car[3], the court must note the scope and limitation of the doctrine eg 7 months after a stolen tire pump was found was held to not be recent[4].

Presumption of Recent Possession v Presumption of Innocence

1.      The presumption of recent possession is a presumption of fact and not a presumption of law as the presumption of innocence[5].

2.      The presumption of fact does not displace the presumption of innocence thereby shifting the burden to the accused of producing legal proof of the innocent origin of the article. Burden remains on the state, the accused is merely expected to state how it originated[6]

Defences

Honest claim of right, an honest claim of right is a defense, where one honestly asserts what he believes to be a lawful claim even though it is unfounded in law or fact, however absurd prevents the taking from being theft.[7]

It may appear that a claim of right supports a plea of ignorance of the law but where it raises the benefit of doubt, it should be accorded to the accused.

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[1] Chaama Hassan Hasa v The Republic (1974) KLR 6 1976

[2] Seif Ally v The Republic (1976) LRT 215 (J Mwakibete)

[3] Odhiambo v The Republic 2002 1 KLR 241

[4] Abdullah Ibrahim v R (1960) EA 43( J Law)

[5] Mwihambi s/o Chinyele and another v Regina( 1953) 2 TLR

[6] Rex v Hassani s/o Mohammed alias Kinyonyoke 1948 15 EACA 121

[7] Oyat v Uganda 1967 EA 827( Sir Udo Udoma)