The
three grounds of appeal raised in the present appeal, by both appellants,
amount to an attack on the lack of evidence to prove the element of possession
beyond a reasonable doubt. The appellants were suspected, from information
reaching the police, of illegal possession of gold. Two police details went to
the first appellant's residence where illegal gold dealings were alleged to
take place. Paragraph 4 of the State outline sets out in summary the basis of
the charge, and, similarly, the basis of the present appeal as it sums up what
the prosecution set out to prove but which, the appellants argue, the
prosecution failed to prove. It states:
“4.
The detectives rushed there and upon arrival they entered the house and
proceeded to the bedroom where the two accused persons were. Upon entering the
bedroom, they saw accused number one, who resides at the house, standing next
to his bed whilst accused number two was standing near a cupboard holding
something in his hand. When he realized the detectives had arrived he threw the
piece he was holding on the cupboard trying to conceal it. Detective Karemba
then rushed to see what had been dropped and picked it up and discovered that
it was gold.”
In
his evidence-in-chief, Detective Karemba is asked whether he knows the first
appellant (then accused 1). He confirms that he does as he arrested him in
possession of gold. He goes on to explain that the appellants were in the
bedroom standing next to a cabinet. The first appellant suddenly dropped
something on the floor which the witness picks up and discovers to be gold.
Towards the end of his evidence-in-chief he then says the first appellant held
something in his hand which he placed on the steel cabinet which, when he
checked, turned out to be gold.
Yet,
under cross-examination by the second appellant when he is asked;
“Did
you say you found me holding something in my hand?”
His
answer is;
“Yes
and you dropped it on the floor.”
It
is not just the recovering officer who gives conflicting evidence regarding
where the gold was found, the second State witness is not sure as well. He says,
in-chief, that upon entering the house they found both appellants inside the
bedroom. They ordered them not to move, the first appellant was next to a
steel cabinet. He then says;
“It
was then that my colleague, the first witness recovered the gold which had been
placed on top of the cabinet in the house.”
Asked
by the second appellant under, cross-examination, if he saw him drop the gold
on the cabinet, he answers;
“You
placed it on top of the cabinet.”
The
evidence is not clear as to who had the gold in his possession.
Where
two or more persons are accused of committing an offence, in which no
connivance is alleged, the State must prove what each individual accused did or
did not do, which action or inaction, makes him criminally liable for the
offence charged.
The
trial court had to resolve this issue first in its judgment before it could
convict.
The
trial magistrate does not seem to have been alive to the contradictory evidence
placed before him by each witness - which contradiction he had to resolve
before he could convict. In his reasoning, he seems to have accepted that the
first appellant had dropped the gold on to the floor. He does not explain why
he opted to accept the initial version given by the first State witness nor
does he explain how he reconciled it to the later version by the same witness
who then says the second appellant placed it on top of the steel cabinet. The
learned trial magistrate also fell into the same error by adopting
contradictory findings regarding who between the two appellants held the gold
at the critical time. Towards the end of his judgment he says:
“Evidence
on record is to the effect that accused 2 was physically holding the gold which
he, upon seeing the police, placed it on top of the steel cabinet. (sic)” Accused 2 got to accused 1's house as early as
0800hrs and accused 1 could not specifically say what he had come to his house
and proceeded straight to the bedroom where the police found the two
discussing. (sic)”
The
reasoning seems to be that because the second appellant had gone to the first
appellant's residence very early in the morning and was found inside the
bedroom discussing, therefore, they possessed the gold allegedly found inside
their room. He correctly held that physical possession was not necessary for a
conviction to follow. In my view, he should have gone further and critically
dealt with the explanation given by the appellants whom he said were blaming
each other. In light of the fact that the police themselves were not consistent
as to who, between the two, held the gold and then placed it on the cabinet (or
threw it onto the floor), could the State case be said to have been proved
beyond a reasonable doubt?
Worse
still, he goes on to find corroboration of this evidence in the second witness'
evidence when clearly he ought to have found that they contradicted each other
in material respects. He seems to have found comfort in the findings of
corroboration from the fact that gold was found inside the house in which the
appellants were present and that they shifted blame on each other. The court a quo failed to
realized the need for the State to furnish proof beyond a reasonable doubt.
In
the oft-quoted words of GREENBERG J cited by WATERMEYER AJA in R v Difford 1937
AD 372…, -
"…,
no onus rests on the accused to convince the court of the truth of any
explanation he gives. If he gives an explanation, even if that explanation be
improbable, the court is not entitled to convict unless it is satisfied, not
only that the explanation is improbable, but that beyond any reasonable doubt
it is false. If there is any reasonable possibility of his explanation being
true, then he is entitled to his acquittal."
The
explanation by the appellants was that they were not in possession of the gold.
The evidence to prove possession was contradictory. The trial court failed to
reconcile the contradictions in the evidence rendering the convictions unsafe.
The evidence was incurably contradictory. If the first appellant held the gold,
as is initially claimed, how is it possible that the second appellant then
placed it on the steel cabinet or threw it to the floor? In the face of such
evidence on the record, without an attempt to reconcile it, the convictions are
unsafe.
In
light of the above, it is not necessary to deal with the appeals against
sentence as they both fall away.
In
the result, I make the following order:
The
appeals against conviction be and are hereby allowed. The verdict in the court a quo is quashed and the sentence set aside. In its place
the following is substituted:
“The accused are both found not guilty and are
acquitted.”
