JUDGMENT

Gordon-Smith CJ, A-G:

In this appeal No. 1 accused appealed as regards his sentence only and No. 2 accused appealed against his conviction. The charge was unlawful possession of ammunition, 48,952 rounds in ammunition boxes.

The appeal of No. 1 was dismissed and that of No. 2 accused was successful to the extent that the conviction was quashed and retrial was ordered. We stated that we would give our reasons later.

Accused No. 1 pleaded guilty and the learned Judge postponed sentence until after the hearing of the case against No. 2 accused. He should have been removed not only from the dock but from the Court also. He was, later, called by No. 2 accused as a witness and had been in Court the whole time. This of course was not actually very material but it was undesirable.

At the conclusion of the prosecution case against No. 2 accused (he was unrepresented) he elected to make a statement from the dock. He was twice interrupted by the Judge and told, in effect, that he must not give hearsay evidence. We think that an accused making a statement from the dock should be allowed to do so in his own way whether or not part of what he says is, technically inadmissible or not. Accused No. 2 then called No. 1 accused as a witness, but before this was done the learned Judge passed sentence on him in respect of his earlier plea of guilty and then he went into the witness box. He was then examined by the learned Judge and, after cross-examination by the DPP, accused No. 2 was asked if he wanted to ask him any questions and put one question to the witness. Accused No. 2 should, after his witness had been sworn and had given his name and address, have been asked what he wanted to ask the witness. Any questions that the learned Judge desired to put to clear up any matters should have been put to the witness after the questions by the accused, cross-examination and any re-examination.

In his summing up to the jury and by way of illustration, the learned Judge put to the jury the case of an unloading coolie at the docks, carrying ashore some loads or luggage which contained ammunition and stated that it would be unfair to say that such coolie was in possession of the ammunition, and he indicated to the jury that the evidence showed that No. 2 accused might fairly be accepted as an unloading coolie. The learned Judge stated quite plainly that the accused's defence was that he did not know that it was ammunition being unloaded but he then puts the prosecution case and the circumstances and place of such unloading which go to show the contrary and he expressed his own view that the possession was unlawful but that in other circumstances it might have been a good defence. Admittedly he left the matter to the jury but he stated that "possession" had no technical meaning. Possession, in order to incriminate a person, must have the following characteristics. The possessor must know the nature of the thing possessed, must have in him a power of disposal over the thing, and lastly must be conscious of his possession of the thing. If these factors are absent, his possession can raise no presumption of mens rea, without which (except by statute) possession cannot be criminal. It was necessary therefore to put these factors before the jury. It was essential to direct the jury that before they could convict the accused of being in "unlawful possession", they must be satisfied that he knew the boxes contained ammunition. Such knowledge was of the essence of the offence and to quote Halsbury, Vol. IX p. 12 para. 4. "Where a particular intent or state of mind is of the essence of an offence, the person committing the act is not criminally responsible if he had no mens rea and the act was ordered or procured by another person - but the person who ordered or procured the act is criminally responsible."

Accused No. 2 was engaged fortuitously in a nearby village to help unload 40 odd boxes on a sampan on to a lorry. In fact, it was a Police trap, b