IN CHAMBERS IN TERMS OF SECTION 35
OF THE HIGH COURT ACT [CAP 7:06]
MAVANGIRA J:The appellants were arraigned before the magistrate sitting at
Mutare on a charge of unlawful entry into premises as defined in s 131 (1) (a)
of the Criminal Law (Codification and Reform) Act, [Cap 9:23].
They all pleaded not guilty and were acquitted of the offence charged but
convicted of receiving stolen property knowing it to have been stolen, as
defined in s 124 (1) (b) of the same Act. The first appellant was
sentenced to 3 months imprisonment. The second and third appellants were
sentenced to 2 months imprisonment. The first appellant has appealed
against the sentence only. The second and third appellants have appealed
against both conviction and sentence.
The Attorney General filed a Notice to the Registrar in terms of s 35 of the
High Court Act, [Cap 7:06]. He does not support the conviction of
all the appellants and prays for the quashing of the convictions. The
submission is made that the court a quo erred and misdirected itself in
convicting the appellants of contravening s 124(1) (b) of the Act when that
charge is clearly not a permissible verdict of the offence of unlawful entry in
terms of the law. It is also submitted that not only was the offence that
the appellants were convicted of not a permissible verdict in terms of the law,
there was also not sufficient evidence led to sustain a conviction on that
charge in respect of all three appellants.
In arriving at the decision to convict the appellants the court a quo
indicated that it received guidance from s 198 (3) of the Criminal Procedure
and Evidence Act, [Cap 9:07] and that it was on such guidance and that
it found that although it could not convict the appellants on the charge of
unlawful entry, it could convict them on another charge, that of receiving
stolen property knowing it be stolen.
Section 198(3) of the Criminal
Procedure and Evidence Act provides:
“198 Conduct of trial.
(3)If
at the close of the case for the prosecution the court considers that there is
no evidence that the accused committed the offence charged in the
indictment, summons or charge, or any other offence of which he might be
convicted thereon, it shall return a verdict of not guilty''.
In terms of the Fourth Schedule s
(275) of the Criminal Law (Codification and Reform) Act, the permissible
verdicts on a charge of unlawful entry into premises are firstly, criminal
trespass and secondly, any crime of which a person might be convicted if he or
she were charged with criminal trespass. On a reading of this provision
it would appear that the trial court lost sight of the fact that “any other
offence of which he might be convicted thereon” ought not to be read and
applied where the evidence adduced before a trial court establishes or proves
the commission of any other offence in the wide sense of the phrase but may
only properly be applied where the evidence proves the commission of a
competent verdict. The word “thereon” in s 198 (3) supra, appears
in my view to lay down the qualification that renders the provision applicable
only in respect of competent verdicts. To hold or proceed otherwise
would, in my view, render the Fourth Schedule of no effect or use.
The trial court having found that it
could not convict the appellants on the unlawful entry charge, was only at
liberty to consider if the evidence placed before it would support a conviction
on the permissible verdicts to a charge of unlawful entry. Such
permissible verdicts are spelt out in the Fourth Schedule and they do not include
the offence of receiving stolen property knowing it to be stolen.
The first appellant's story was that
he had been given the property, the subject of the unlawful entry charge by one
Collen or Kodza and that this person had made him write down the received
goods. The first appellant was at the anti-sanctions campaign held at
Meikles Park. The police could have but did not, and inexplicably so,
made any effort to track Collen through the mobile number which the first
appellant alleged he had contacted him on prior to his arrest. Neither
was any effort made to ascertain the alleged list of goods that he claimed
Kodza had handed to him.
Section 124 (1) of the Criminal Law
(Codification and Reform) Act, provides:
“124 Receiving stolen property knowing it to have been stolen.
(1)
Any person who takes possession of stolen property-
(a)knowing
that it has been stolen or;
(b)realizing
that there is a real risk or possibility that it has been stolen shall be
guilty of receiving stolen property knowing it to have been stolen….”
The first appellant's claims as related above, not having been rebutted, the
conviction for receiving stolen property knowing it to have been stolen is not
justified on the evidence on record. As for the second and third
appellants they maintained that they had been given the goods to sell by the
first appellant without knowing that it was stolen property. The first
appellant confirmed this. It thus also appears that on this score as
well, their conviction for receiving stolen property knowing it to have been
stolen cannot be sustained. Consequently the convictions of all three
appellants cannot stand and will be set aside.
In his notice the Attorney General also raised two issues that are worthy of mention.
Firstly, that the facts alleged by the state suggested a more serious offence
as being the proper charge to bring against the appellants than the charge that
was preferred. The proper charge that ought to have been brought against
the appellants is one of unlawful entry in aggravating circumstances instead of
mere unlawful entry into premises. The second relates to the failure by
the trial court to hold a trial within a trial in order to properly admit the
appellants' extra statements and indications made at the scene. These
observations by the Attorney General are valid.
For the reasons discussed above the convictions of the appellants are not
supportable on the evidence on record. They must be set aside as must
also necessarily the sentences imposed on them.
In the result, the convictions of all three appellants are hereby set
aside. The sentences imposed on each of them are also hereby set aside.
HUNGWE J Agrees:____________________
