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Bania v Reginam [1965] FJLawRp 36; [1965] 11 FLR 55 (10 March 1965)

[1965] 11 FLR 55

SUPREME COURT OF FIJI

Appellate Jurisdiction

DURGA BANIA

v.

REGINAM

[SUPREME COURT, 1965 (Mills-Owens C.J.), 5th February, 10th March]

Criminal law-burden of proof-section 205 of the Criminal Procedure Code-proof of gist of offence on prosecution-proof of excuse, justification or exculpation on the defendant-Criminal Procedure Code (Cap. 9) ss.3(2),123(b)(ii),205-Liquor Ordinance 1962 s.96(1)(b)-Summary Jurisdiction Procedure Ordinance 1876 s.30-Liquor Ordinance (Cap. 209) s.94-Liquor Ordinance 1932 s.84(1)-Summary Jurisdiction Act 1848 (11 & 12 Vict., c.43) (Imperial) s.14-Summary Jurisdiction Act 1879 (42 & 43 Vict., c.49) (Imperia I)-Magistrates Courts Act 1952 (15 & 16 Geo. 6 and 1 Eliz. 2, c.55) (Imperial) s.81-Indictments Act 1915 (5 & 6 Geo. 5, c.90) (Imperial) r.5(2)-Magistrates Courts Rules 1952 (Imperial) r.4(3)-Crimes Act 1914 (Commonwealth of Australia)-Licensing Ordinance 1939-1952 (N.T.-Australia) s.141-Aboriginals Ordinance 1918-1947 (N.T.-Australia).

The appellant was convicted in the Magistrate's Court on a charge of keeping in his shop premises a quantity of liquor in excess of his own reasonable personal requirements. Such keeping is an offence against section 96 (1) (b) of the Liquor Ordinance 1962 "if the premises are not licensed under this Ordinance". The magistrate held that there was an evidential burden on the appellant to show that it was reasonably possible that the premises were licensed. On appeal –

Held: 1. The fact that section 88 of the Liquor Ordinance makes provision for various presumptions in specified circumstances does not impliedly abrogate the effect of section 205 of the Criminal Procedure Code.

2. In the application of section 205 of the Criminal Procedure Code the burden of proving the gist of the offence remains on the prosecution; only if the defendant is relying on some special ground of excuse, justification or exculpation does the onus of adducing evidence thereof lie on him.

3. It is consistent with the object of the Liquor Ordinance 1962, that section 96 should be read as providing that certain circumstances should be regarded as indicating the possession of liquor for the purpose of sale; the gist of the offence is the keeping of liquor in such circumstances and the possession of a licence is a matter of excuse or exemption.

Cases referred to: Ah Ben v. Police [1940] 3 FLR 272: Hari Narayan Singh v. R. [1958-59] 6 FLR 95: R. v. Oliver [1944] KB 68; [1943] 2 All ER 800: R. v. Putland and Sorrell [1946] 1 All ER 85; 174 LT 148: John v. Humphries [1955] 1 All ER 793; 119 JP 192: Philcox v. Carberry [1960] CLR 563*: Rajgopal Pillai v. R. [1962] 8 FLR 163: R. v. Scott [1921] 86 JP 69: R. v. Turner [1816] EngR 587; [1816] 5 M & S 206; 105 ER 1026: R. (Sheahan) v. Cork JJ. [1907] 2 Ir R 5: Dowling v. Bowie [1952] HCA 63; [1952] 86 CLR 136: Vines v. Djordjevitch [1955] 91 CLR 512.; [1955] HCA 19.

Appeal from conviction in the Magistrate's Court.

R. I. Kapadia for the appellant.

B. A. Palmer for the Crown.

MILLS-OWENS C.J.: [10th March, 1965]-

The appellant was convicted on a charge of keeping, in a part of his shop premises, a quantity of liquor in excess of his own reasonable personal requirements, contrary to section 96 (1) (b) of the Liquor Ordinance, 1962.

Section 96, so far as material, reads as follows –

"96. (1) Any person owning or managing any shop, whether licensed under the Licence Ordinance or not, if the premises are not licensed under this Ordinance –

(a) shall not store or keep or permit to be stored or kept, any liquor in any part of such shop to which the public normally have access or in any adjoining building to which the public normally have access;

(b) shall not store or keep or permit to be stored or kept, any liquor in excess of his own reasonable personal requirements in any other part of such shop or adjoining building."

The appeal is brought on the technical ground that the prosecution failed to prove, or even to adduce evidence directed to proving, that the premises were "not licensed under this Ordinance". The same point was raised at the trial on a submission of no case to answer. Mr. Kapadia, for the defence, referred, further, to section 88 of the Ordinance under which certain presumptions are provided for; these, he argued, were to be taken as exhaustive of the presumptions to be made against the appellant. The learned Magistrate held that it was a case of a negative averment in a matter lying peculiarly within the knowledge of the appellant and thus an exception to the rule that the burden lies on the prosecution; section 88, in his view, set out certain "statutory" presumptions - it did not purport to set out all the common law presumptions but only such presumptions as could have no existence apart from the Ordinance. He referred to the burden lying on the appellant as an evidentiary burden, limited to shewing that it was reasonably possible that the premises were licensed.

On the appeal the defence submissions were repeated. Mr. Kapadia submitted further that in point of fact it was just as easy for the prosecution to prove that a licence had not been issued as it was to the appellant to shew that one had been issued. He cited the case of Ah Ben v. Police [1940] 3 FLR 272, where, on a charge of selling liquor without a licence, the Supreme Court (Corrie C.J.) sitting in appeal held that, upon the proper construction of section 30 of the Summary Jurisdiction Procedure Ordinance, 1876 and section 84 (1) of the Liquor Ordinance, 1932, it was for the prosecution to adduce evidence that the defendant was not the holder of a licence. The later case of Hari Narayan Singh v. R. [1959] 6 FLR 95, Mr. Kapadia submitted, was to be distinguished. In that case the charge was similar but brought under the later Liquor Ordinance (Cap. 209). On appeal, the Supreme Court (Lowe C.J.) held that it was for the defendant to adduce evidence of possession of a licence, on the authority of R. v. Oliver [1943] 2 All ER 800 and, possibly, section 94 of the Ordinance which was in terms similar to section 205 of the Criminal Procedure Code. Mr. Kapadia argued that section 205 of the Criminal Procedure Code was not applicable; section 96 of the Liquor Ordinance contained no 'exception' or 'exemption', and this was the feature distinguishing the present case from the case of Hari Narayan Singh v. R. It was not an offence, per se, to keep liquor in an unlicensed shop. In this respect also the present case was to be distinguished also from the case of R. v. Oliver. In his submission the present case was comparable with that of R. v. Putland & Sorrell [1946] 1 All ER 85 where the charge concerned the acquiring of rationed goods without surrendering coupons. There the Court said that there was a very broad distinction to be observed between the case and that of R. v. Oliver: "In that case (Oliver) the prohibition against doing the thing was absolute, and it was for the defendant ...to provide some excuse such as a licence ... In this case, the offence... is not dealing in rationed goods; that remains lawful ... but what is provided is that, if a person does deal in rationed goods in a particular way he must do something else, i.e. he must surrender the appropriate number of coupons". It was held that the onus lay on the prosecution to prove that there was no surrender of coupons.

Crown Counsel, Mr. Palmer, submitted that the expression "if the premises are not licensed under this Ordinance", appearing in section 96 of the Liquor Ordinance, was a qualification or exemption, the onus of proving which fell on the appellant by virtue of the provisions of section 205 of the Criminal Procedure Code. As in the licence and insurance cases (R. v. Oliver (supra); John v. Humphries [1955] 1 All ER 793; and Philcox v. Carberry [1950] CLR 563) section 96 contemplated an activity which was lawful only if authorised. He relied particularly on the decision in Hari Narayan Singh's case. This decision was in point, Mr. Palmer argued, as the then Liquor Ordinance contained a provision (section 94) similar to section 205 of the Criminal Procedure Code. Section 205 applied not only to offences under the Penal Code but to offences under other laws - vide section 3 (2) of the Code. The statutory presumptions laid down by section 88 of the Liquor Ordinance were presumptions peculiar to that Ordinance and should not affect provisions or laws of general application. He relied also on the case of Rajgopal Pillai v. R. [1962] 8 FLR 163 where the licence and insurance cases were specifically applied.

The foregoing were the opposing arguments on the appeal. The decisions in the driving licence and third-party insurance cases have not gone uncriticised. Reference may be made to the following comments appearing in "The Criminal Law" (Glanville Williams - 2nd Edn.) at p. 904 –

"Notwithstanding the judgment in Oliver, it is still open to argument that the prosecution must give prima facie evidence if it is within its power to do so. This would be in accord with the principle stated by Stephen, which has been approved more than once by the Court of Criminal Appeal, that 'in considering the amount of evidence necessary to shift the burden of proof [i.e., the evidential burden], the court has regard to the opportunities of knowledge with regard to the fact to be proved which may be possessed by the parties respectively'. Apart from this possibility, the decision in Oliver has been subtly restricted by confining it to circumstances where 'the prohibition against doing the thing is absolute, and it is for the defendant, if he wishes to show that he may do it lawfully, to provide some excuse such as a licence'. It does not apply where the prohibition is only against doing the thing sub modo; here prima facie evidence of contravention must be given. Nor would the decision apply where the allegation is in respect of what may be called the substance of the charge and not a mere matter of qualification or excuse. ..............................."

In John v. Humphries, it is to be observed, the Court found it necessary to go outside the facts found by the case stated, and the concurring judgment of Ormerod J. was obviously a reluctant one, perceiving as it did that there was a danger that a rule calling upon the defendant to prove his innocence was being adopted. In Philcox v. Carberry, according to the shorthand note, the Court expressed itself in terms of being bound by authority and consequently refrained from examining the cases. In R. v. Putland & Sorrell, as appears above, the Divisional Court made, as it is said, a subtle distinction. In motoring cases the substantial effect of John v. Humphries and Philcox v. Carberry might be said to be that on mere proof of the driving of a motor vehicle the defendant is required to prove himself not guilty; not guilty of the very offence with which he is charged; and notwithstanding that the legislation provides for production of the driving licence or certificate of insurance, as the case may be, and thus provides the prosecution with a means whereby it may give prima facie evidence at least of their non-existence. It is not an unreasonable criticism that these decisions lose sight of the question: what is the gist of the offence charged. One can appreciate such decisions as R. v. Scott [1921] 86 J.P. 69 and R. v. Turner [1816] EngR 587; [1816] 5 M. & S. 206, both of which were relied upon in R. v. Oliver. In the case of Scott the offence was one of the sale of a dangerous drug by an unauthorised person. Swift J. said –

"It might be very difficult or impossible for the prosecution satisfactorily to prove that he did not possess anyone or other of the qualifications which might entitle him to deal with the drug. But the defendant could prove without the least difficulty that he had authority to do it."

Clearly, in my view, the gravamen of the charge in Scott's case was the trafficing in dangerous drugs; that was the activity which it was the object of the law to prohibit. Thus it was for the defendant to shew that what prima facie was unlawful was lawful in the circumstances of the case; it was for him to produce his authority - in effect he was confessing and avoiding. The same may be said of Turner's case, which concerned an offence against the Game Laws and where there were some ten qualifications anyone of which might be open to the defendant and only he could say which, if any, was applicable.

The common law rule as to 'exceptions' would appear to have originated in the sphere of pleading, the evidential burden being held to shift by the mere form of drafting of the legislation. Thus if the exception relied upon by the defendant appeared in a proviso, or in another section, the burden was on the defendant. No doubt it was intended in the case of R. v. Oliver to put the matter on the basis of substance rather than form.

Thus far I have been referring to the position at common law. In summary jurisdiction, it appears, the matter of exceptions, qualifications and negative averments was first dealt with by the Summary Jurisdiction Act, 1848. Section 14 of the Act provided –

"Provided always, that if the information or complaint in any such case shall negative any exemption, exception, proviso, or condition in the statute on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative, but the defendant may prove the affirmative thereof in his defence, if he would have the advantage of the same."

This is not unlike section 30 of the Summary Jurisdiction Procedure Ordinance, 1876 which was in point in the case of Ah Ben v. Police (supra) where Corrie C.J. at pp.274-5 said –

"The offence defined by s.44 is not selling liquor, but selling liquor without holding a licence. Hence the holding of a licence does not merely constitute an exception taking the case out of the scope of the section.........................................."

The Summary Jurisdiction Act, 1879 substituted for the provisions of the Act of 1848 the following –

"Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the Act, order, byelaw, regulation, or other document creating the offence, may be proved by the defendant, but need not be specified or negatived in the information or complaint, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the informant or complainant."

Section 205 of the Criminal Procedure Code is in similar terms –

"Any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the Ordinance creating the offence, and whether or not specified or negatived in the charge or complaint, may be proved by the defendant, but no proof in relation thereto shall be required on the part of the complainant."

The foregoing provisions may be compared with Rule 5 (2) of the Indictments Act, 1915, applying to offences tried on indictment, which provides –

"It shall not be necessary, in any count charging a statutory offence, to negative any exception or exemption from or qualification to the operation of the statute creating the offence."

Here it may be noted that R. v. Oliver was a case tried on indictment, whereas John v. Humphries and Philcox v. Carberry were cases tried summarily. Clearly section 205 of the Criminal Procedure Code and its English counterpart (now section 81 of the Magistrates' Courts Act 1952 and rule 4 (3) of the Magistrates' Courts Rules) go much further than the Indictments Act in that they deal expressly with proof as well as pleading; proof, in the English procedure on indictment, is left to the common law. A provision similar to Rule 5 (2) of the Indictments Act appears in section 123 (b) (ii) of the Criminal Procedure Code in relation to both charges and informations, but section 205 appears to apply only to trial before a Magistrate's Court.

As it appears to me, the extension of the language formerly used in the summary jurisdiction legislation was very deliberate; in particular, the insertion of the words "whether it does or does not accompany in the same section the description of the offence", words which appear in our section 205. The object of this expression, it may be said, is that the position, in point of drafting, in which the exception etc. appears, is no longer to be regarded as a matter of substance. But the questions remain: first, does the common law rule apply where the case is dealt with in the summary jurisdiction and such a provision as section 205 exists; secondly, does a statutory provision such as section 205 throw the onus on the defendant where the lack of a licence or other qualification is not a matter of exception or excuse but constitutes the very gist of the offence. I have made some reference to this latter question above. Here I may reproduce a citation from an Irish case (R. (Sheahan) v. Cork JJ. [1907] 2 Ir. R. 11) quoted by Glanville Williams (op. cit. at pp. 899-900)-

"The section does not authorise the omission of anything which is made an essential constituent part of the offence created and described. The point does not depend on the mere use of the words 'except, etc'. A prohibition against selling bread except by weight would not authorise a complaint for selling bread simpliciter. A summons in that form would show no offence. The test, or dividing line, appears to be this: - Does the statute make the act described an offence subject to particular exceptions, qualifications, etc., which, where applicable, make the prima facie offence an innocent act? Or does the statute make an act, prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negatived; in the latter, words of exception may constitute the gist of the offence."

In the Australian case of Dowling v. Bowie [1952] HCA 63; [1952] 86 CLR 136 the defendant was charged with selling liquor to a half-caste (within the meaning of the Aboriginals Ordinance) contrary to section 141 of the Licensing Ordinance (Northern Territory). Under the Aboriginals Ordinance (N.T.) it might be declared by notice in the Gazette that any person should not be deemed to be a half-caste. It was held by the High Court of Australia that the onus lay on the prosecution of establishing the negative, namely that the person to whom the liquor was sold was not a person in respect of whom such a declaration had been made. Sir Owen Dixon C.J. in a considered judgment, at pp. 139-141, said –

"The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification. ... The distinction has been criticised as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it.... But in the present case an essential element in the liability imposed ... is that the person to whom liquor is sold should be governed by the Aboriginals Ordinance."

Fullagar and Kitto JJ. concurred in this judgment. It will be observed that the judgment discusses the common law rule, not such a provision as our section 205, but, as it appears to me, much of what is said is relevant to the construction of section 205.

Williams and Taylor JJ. in a joint considered judgment dealt specifically with a provision of the Commonwealth Crimes Act, 1914 which would appear to be in similar terms to our section 205. At pp. 144 et seq. they said –

"Ex parte Ferguson; Re Alexander is an illustration of a statutory offence described in terms which introduced a true exception and in that case Jordan C.J. concisely stated the relevant principles: 'In these cases, a special rule of construction became

established at common law. If the offence were defined as consisting of a single concatenation of factors, all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision ‘exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence, and the second was regarded as matter of confession and avoidance available by way of defence’. After referring to the provision made by s. 145 A of the Justices Act 1902-1940 (N.S.W.), his Honour processed: ‘Section 14 of the Commonwealth Crimes Act, 1914 as amended, dealing with persons charged before a Court of summary jurisdiction with an offence against a law of Commonwealth, is substantially to the same affect. A substantially identical provision was contained in the English Licensing Act, 1872 (35 & 36 Vic. c94), s.24, and it was explained by Blackburn J., in Roberts v. Humphreys that it was pointed against decisions of the Court of Common Pleas under Jevis’ Act (11 and 12 Vict. c43), and made it incumbent on the defendant to prove any exception in his favour. In my opinion what is meant by s.14 of the Commonwealth Crimes Act, 1914, is that, as a matter of evidence, it is for the defendant to prove any exception, whether it be associated with or separate from the description of the offence, and that, as a matter of pleading, it is unnecessary for the prosecutor to specify or negative it, but if he does, it is unnecessary for him to give any proof in relation to it: Bell v. Hyde. It is, of course, in every case a question of construction whether any particular words are words of exception. Barritt v. Baker is an illustration of an offence created by a provision which contained a negative element as one of the essential ingredients of the offense and as an exception. In dealing with the point Fullagar J. Referred to s.214 of the Justices Act 1928 (Vict.) and proceeded: ‘The history and purpose of this section are explained in Roberts v Humphreys, and it has been discussed in Victoria notably in Shillinglaw v. Roberts; Donoghue v. Terry; Bell v. Hyde; De La Rue v. Mathews. The section is expressly made applicable ‘whether the exception, etc., does or does not accompany in the same section the description of the offence'. Thus there need not be, in order to attract the operation of the section, a description of the offence followed by an express and separate statement of the exception. ........ But the section will not in my opinion, operate to relieve the prosecutor from proving any fact which is an essential element in the specification in the prohibited act, and Lowe J. held that it must be proved by the prosecution .... It seems to me that the question must often turn on the form of the legislation. The problem is not a problem of formal logic. The Court is not to undertake the task of classification and to decide what is the logical statement of the rule and the logical statement of the exception. Its task is purely and simply one of statutory construction. It has only to say what the elements which the Legislature has specified as the prima facie ingredients of the offence. When it has determined, as a matter of construction, what those ingredients are, it necessarily follows that the burden of proving the totality of those ingredients rests upon the prosecution.... It is immaterial, I think, that that definition involves a negative’. We find ourselves in complete accord with the observations contained in these two passages, and applying the principle therein referred to, it follows that the issue whether Shannon was an exception, but was one of the ingredients of the offence.

It is unfortunate that the question was left unresolved whether the common law rule is abrogated where there exists such a statutory provision as our section 205.

The later case in the High Court of Australia of Vines v. Djordjevitch [1955] HCA 19; [1955] 91 CLR 512 dealt with a matter of civil liability but the decision in Dowling v. Bowie was referred to in the following passage of the judgment of the Court, at pp. 519-20, -

"'There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not' - per Abbott J. in Steel v. Smith. The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. ..... But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter: see Morgan v. Babcock & Wilcox Ltd.; Pye v. Metropolitan Coal Co. Ltd.; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen; Barritt v. Baker; Dowling v. Bowie."

These decisions point very clearly to the necessity for determining what is the gist of the offence in any particular case.

I propose to decide the present case strictly on the construction to be placed on section 205 of the Criminal Procedure Code and section 96 of the Liquor Ordinance, 1962. The Australian cases, in particular, demonstrate that the expression (in section 205 of the Code): "whether it does or does not accompany in the same section the description of the offence" was intended to eliminate technical distinctions dependent on the form of the legislation but no more. Accordingly the onus of proof is no longer dependent on the form of the drafting of the relevant legislation. The matter now depends not on form but upon substantial considerations. It is the intrinsic character of the statutory provision in question and its real effect which is to be considered in determining where the burden of proof lies (in the sense of an evidentiary burden). I therefore take the law to be that in the application of section 205 the burden of proving the gist of the offence remains on the prosecution; only if the defendant is relying on some special ground of excuse, justification or exculpation does the onus of adducing evidence thereof lie on him. The argument for the appellant in the present case amounts to this; that the gist of the offence charged is not merely the keeping of liquor but the keeping of liquor on unlicensed premises; it is no offence to keep liquor on other premises. The contention for the Crown is that the 'policy' of the Ordinance is the control of liquor intended for commercial purposes; it is incidental to that purpose that control should extend to shop premises but that exemption should be allowed in the case of licensed premises -there is, in effect, a general prohibition with a special ground of excuse available to the defendant. In my view the latter contention is correct. As I view it, section 96 is to be construed as a general prohibition against the keeping of liquor in circumstances indicating an intention to make commercial use of it, with an exemption in respect of licensed premises. Reading the Ordinance as a whole its object, obviously, is the control of the sale of liquor, and it is entirely consistent with that object that section 96 should be read as providing that certain circumstances should be regarded as indicating the possession of liquor for the purpose of sale. The gist of the offence is the keeping of liquor in such circumstances; the possession of a licence is a matter of excuse of exemption. Prima facie the possession of liquor in circumstances indicating an intention to make commercial use of it is unlawful; the possession of a licence is a qualification or exemption, or ground of defeasance, available to the appellant. It was therefore for him to adduce evidence of the possession of a licence, if he had one. The fact that section 88 of the Liquor Ordinance makes provision for various presumptions in certain specified circumstances does not, in my view, affect the matter. They are presumptions peculiar to the subject-matter of the Ordinance and do not operate impliedly to abrogate the effect of section 205 of the Criminal Procedure Code.

Acordingly the appeal is dismissed.

Appeal dismissed.