Case No.:

AC-CR-REV-284-1962

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—Entering the Sudan without valid visa—Passports and Immigration Act 1960, S. ii (i)—Prosecution must prove accused non-Sudanese

·  Evidence——Convictions—Evidence of a prior conviction is not evidence of facts leading thereto

Held: (i) For a Conviction of entering the Sudan without a valid entry visa, the prosecution must prove that accused is not a Sudanese by proof of two elements:
(a) That neither accused nor his ancestors in the direct male line have been domiciled in the Sudan from December 3!, 1897, until the coming into force of the Nationality Act i
(b) That accused has not acquired Sudanese nationality by naturalization.

(ii) Evidence of -a prior conviction is not evidence of the facts leading thereto.

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. MAHGOUB ABDALLA ALl

AC-CR-REV-284-1962

Babiker Awadalla J. November 8, 1962: —By authority of the Honour- able Chief Justice I refuse confirmation of finding and order that the accused be set at liberty forthwith.

Accused in this case’ was convicted under Passports and Immigration Act 1960, s. 11 (i), for having entered the Sudan without a valid entry visa. The charge as framed cites that in I959 accused was deported to Ethiopia and that on the date of arrest on the present charge he was found at Port Sudan without having in his possession any papers evidencing his lawful entry. Accused denied the charge and alleged that his father was of Turkish ongin and his mother an Ethiopian. He claims to have been born at Roseiris and that he left in 1934. Since his birth he contends he had never been outside the Sudan except once when he was deported to Ethiopia, but the Ethiopian authorities refused him entry and deported him back to the Sudan.

The court found that accused is Ethiopian because he had utterly failed to disprove the allegation that he is Ethiopian or to prove that he is Sudanese.

In my view the court was wrong in throwing the burden of proof of innocence upon the accused. The golden rule of criminal justice it is for the prosecution to prove a case and not for the accused to rebut one is no less applicable to prosecutions under this Act than it is under all other departments of the criminal law. In the present case, quite apart from entry without a valid entry visa, it was for the police to establish that accused was an alien, i.e., a person who is not a Sudanese. In order to establish this, the police have to prove positively each of the following two ingredients:

(a) That neither accused nor his ancestors in the direct male line have been domiciled in the Sudan from December 31, 1897, until the coming into force of the Nationality Act 1957; and

(b) That he has not acquired Sudanese nationality by naturalisation.

As none of these facts has been proved in the present case a conviction is certainly wrong and cannot stand.

In the present case, the court simply relied, on previous convictions. Accused’s previous conviction is only evidence of- the conviction but not of the facts leading thereto. Therefore proof of a previous conviction can in no way alleviate the burden, which the law lays on the shoulders of the prosecution.