The
appellant was charged and convicted of the offence of un-authorised
use of property as defined in section 116 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]….,.
This
appeal is against both conviction and sentence and the thrust of the
appellant's appeal is that his conviction in the lower court was
made against the weight ...
The
appellant was charged and convicted of the offence of un-authorised
use of property as defined in section 116 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]….,.
This
appeal is against both conviction and sentence and the thrust of the
appellant's appeal is that his conviction in the lower court was
made against the weight of evidence which screamed for his acquittal.
In
support of this contention, the appellant has, among other issues,
attacked the authenticity of the resolutions which were relied upon
by the learned magistrate in justifying his conviction. The appellant
has also sought to highlight the unreliability of the evidence of the
key state witness, one Abel Denhere.
The
respondent's counsel filed a concession of the appeal in terms of
section 35 of the High Court Act.
We
have considered the concession filed and the reasons thereto and we
are of the firm view that that concession was well made and an
informed one for that matter because of, inter
alia,
the following considerations;
(i)
It will be noted in the first place that the State Outline is
categoric that at the material time the appellant had been relieved
of his duties by the complainant organization, yet, to the contrary,
no resolution to this effect was produced in these proceedings.
(ii)
It could not possibly have been the correct position that the
appellant was not allowed to drive this motor vehicle at a time the
registration documents bore his particulars because in order for the
change of ownership to have been effected, the appellant had to drive
this motor vehicle.
(iii)
During the proceedings, there were certain references made to the
President of the organisation and it was naïve on the part of the
State counsel to have closed its case without leading evidence from
such a crucial witness. The evidence would have clarified the actual
position of the appellant in the organisation. This casual approach
weakened the position of the State case as against the appellant.
(iv)
There was also an averment made that when the vehicle was being kept
at King House it remained in the custody and control of the appellant
until its registration had been formally concluded. This position
could not have been rebutted without a proper resolution to that
effect. It was certainly not safe for the magistrate to religiously
accept the evidence of Abel Denhere as it is clear that already the
appellant was having work-related problems with Abel Denhere.
(v)
It is quite revealing to note that what triggered these allegations
were the events of 13 April 2012 when the appellant took the motor
vehicle from King House. Whereas, Abel Denhere says, at that stage,
the appellant was no longer employed by the complainant's
organisation. One of the most crucial witnesses, David Madenho, was
categoric that at that stage the appellant was still employed as a
driver of TOC-H, the complainant's organisation. The
bottom line is that there were work-related problems at TOC-H and
those problems appear to have triggered these allegations.
(vi)
Furthermore, in the absence of a proper resolution, it was clearly
not safe for the learned magistrate to accept that the appellant had
unlawfully taken the vehicle from King House when it could not have
been possible to have the vehicle's registration changed without it
being driven to Southerton Police Station for clearance by the
appellant.
For
these reasons, the respondent's concession was well-made and the
appellant succeeds in his appeal.
