The
accused person in this matter was convicted of the offence of
possessing property reasonably suspected of being stolen.
I
believe whilst no statute is cited giving impression that this is a
common law offence, a proper charge should have been that of
contravention of section 125 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] which provides as follows:
“If
any person –
(a)
Is
or has been in possession of property capable of being stolen and the
circumstances of his or her possession are such as to give rise,
either at the time of his or her possession or at any time
thereafter, to a reasonable suspicion that when he or she come into
possession of the property it was stolen; and
(b)
Is unable, at any time, to give a satisfactory explanation for his or
her possession of the property, the person shall be guilty of
possessing property reasonably suspected of being stolen…,.”
The
facts of this matter are that on 24 March 2016, and at around 11:00
hours, Constable Chazireni and Assistant Inspector Majawa got a tip
off from an anonymous person that Michael Simon was in possession of
a Sony laptop suspected to be stolen. The two officers went to arrest
Michael Simon and recovered the Sony laptop. He then led them to
Martin Moyo (the accused) whom he alleged had pawned the laptop for
$10=. The accused person was arrested and failed to account for
ownership of the laptop and alleged that he had stolen it from
another unknown traveller from South Africa at Macs Garage in
Bulawayo.
The
accused person, in his Defence Outline, told the court that:
“I
returned from South Africa in 2013 and I bought the laptop at the
border. I went to Michael and asked for $10= and I gave him the
laptop as security.”
The
first State witness, Richard Madawu, told the court that upon
receiving a tip off from an unidentified person that there was
someone selling a laptop for $6= he then questioned this person. He
asked the person where he had gotten the laptop from and the person
said he got it from the accused person when they met in town. The
accused person was then arrested. The accused person was not asked
anything by this witness. Neither was Michael asked the circumstances
through which he got the laptop from the accused person.
These
were the material aspects of the first witness's evidence.
The
next witness was the investigating officer. He received the docket
and asked the accused person where he had gotten the laptop from. He
told the court that the accused person said he had found the laptop
amongst his things when he came back from South Africa. He told the
court that the accused said he got the laptop from Macs Garage.
In
cross- examining this witness, the accused said he had told him that
he bought the laptop on his way from South Africa. The witness
answered No.
Under
the accused person's own cross examination he said he bought the
laptop for R1,200=. The trial magistrate, in her judgment, places an
onus on the accused person to prove his innocence.
He,
in fact, goes on to say that a failure by Michael Simon to mention
certain things to the police proves the accused person's guilt.
Michael Simon was never called to testify in court by the State which
had a case to prove against the accused person.
The
accused person told the court that he bought the laptop for R1,200=
at the border on his way from South Africa. It cannot be said, in my
view, that the accused person failed to give a reasonable explanation
for his possession of the laptop. He said that he bought it on his
way from the Republic of South Africa was not proven that it was
false.
An
accused person cannot be disbelieved simply because he is an accused.
The court should justify its decision to refute the accused person's
explanation and it cannot be a justification that simply because the
accused had used the laptop for a debt of $10= then it was stolen.
What if the accused just had that kind of asset which was acceptable
to the lender?
Again,
the evidence of Michael Simon of selling for $6=, as given by the
police officers, is of no value since Michael Simon was never called
to court by the State to prove its case against the accused person.
The accused person is certainly not responsible for Michael Simon's
actions and no imputations of guilt can be made as against the
accused person because of Michael Simon's conduct.
An
accused person's defence can only be rejected if it is improbable,
unreasonable and not possibly true.
In
the case of S
v Makanyanga
1996 (2) ZLR 231 the court summed it up as follows:
“A
conviction cannot possibly be sustained unless the judicial officer
entertains a belief in the truth of the criminal complaint, but the
fact that such credence is given to the testimony of the complaint
does not mean that conviction must necessarily ensure. Similarly, the
mere failure of the accused to win the faith of the Bench does not
disqualify him from an acquittal. Proof beyond reasonable doubt
demands more than that a complainant be believed and an accused
disbelieved. It demands that a defence succeeds whenever it appears
reasonably possible that it might be true.”
The
accused person in this case says he bought the laptop for R1,200= at
the border on his way from South Africa. The State has not adduced
any evidence to rebut that. It cannot be held that simply because he
used it as security for a debt of $10= then his version is false. He
could use it for that amount of a debt depending on the
circumstances. Nowhere is it shown in the court record that it could
not have been possible to do so and the reasons. The learned
magistrate misdirected himself when he said that the accused person
had sold the laptop for $10=. There is nowhere in the court record
where it is alleged that the accused person sold the laptop for $10=
but that he had used it as security for a $10= debt. It does not
necessarily follow that you only given as security an
item equivalent in value to the sum loaned as you can give as
securing on item of higher value for a lesser amount.
Instead
of calling Michael Simon to establish what happened, the court seeks
to blame the accused person for the inadequacy of the State's
version in so far as Michael Simon's statements are concerned. It
was for the State to prove the issues surrounding Michael Simon's
version of events by bringing him to court, not for the court to
balance the accused person's version as against the allegations
stated by Michael Simon to the police as that was not evidence before
it.
A
court cannot cast any onus whatsoever on an accused person to prove
his defence. Refer to the case of Machakaire
v S
SC30-92.
The
conviction can thus not be sustained on the facts as contained in the
court record.
I
accordingly make the following order:
Both
conviction and sentence are set aside. The magistrate's decision is
substituted with the following:
(1)
The accused person is found not guilty and is acquitted.
(2)
The laptop that was forfeited to the State shall be returned to the
accused person immediately.
