The
appellant was convicted on one count of armed robbery by the Regional
Court sitting at Harare. He had been charged with two Counts of armed
robbery of two motor vehicles. He was, due to lack of evidence,
acquitted on the other Count….,.
At
the hearing of the appeal, counsel for the respondent conceded that
the Regional ...
The
appellant was convicted on one count of armed robbery by the Regional
Court sitting at Harare. He had been charged with two Counts of armed
robbery of two motor vehicles. He was, due to lack of evidence,
acquitted on the other Count….,.
At
the hearing of the appeal, counsel for the respondent conceded that
the Regional Magistrate erred when he convicted the appellant of
armed robbery when there was no evidence linking him to the robbery.
Counsel for the appellant agreed with counsel for the respondent that
the appellant should have been convicted of receiving the motor
vehicle knowing it to have been stolen.
The
complainant in the Count for which the appellant was convicted only
had 30 seconds in which he observed the robbers. Thereafter, he was
ordered not to look at his assailants and a gun was pointed at his
head. In the 30 seconds he said he observed that the robber who
approached his motor vehicle from the right was short, dark and
stout. It is common cause that the appellant does not fit that
description. The complainant said the robber who approached his motor
vehicle from the left was tall and slim. Again, the appellant does
not fit that description.
It
must be noted that the complainant did not have sufficient time to
observe the robbers. His brief observation, which was split between
the robbers on either sides of his motor vehicle, could not have
founded the appellant's conviction even if the description he gave
fitted the appellant. On the contrary, the complainant said he was
not able to identify the appellant as one of the robbers.
In
view of the above we were satisfied that the Regional Magistrate
erred when he convicted the appellant of armed robbery in the absence
of evidence identifying him as having been at the scene of the
robbery. We therefore found that the concession made by counsel for
the respondent was properly made.
Counsel
for the respondent, in making the concession, submitted that the
applicant should be convicted on the competent verdict of receiving
stolen property knowing it to have been stolen. He said this was to
be premised on the appellant being in possession of the stolen motor
vehicle the next morning after it had been robbed from the
complainant after 10:00pm the previous night. He further pointed out
that the appellant's conduct, after taking possession of the motor
vehicle, proves he knew it was stolen. He pointed to the following as
proof of such knowledge;
(1)
That
the appellant used an illegal exit from Zimbabwe to Mozambique
resulting in the motor vehicle being stuck in Mukumbura River.
(2)
He
gave Cst. Muchira incorrect information about his identity and that
of the motor vehicle;
(a)
He
told Cst. Muchira that he was Victor Mujuru Chatibva.
(b)
He
showed him a driver's licence in the name of Victor Mujuru
Chatibva.
(c)
He
gave an incorrect registration number and colour of the motor
vehicle.
This
proves the appellant did not want to be linked to the motor vehicle
he had driven from Harare to Mukumbura River. This can only be
because he knew the motor vehicle had been stolen.
Counsel
for the appellant agreed with counsel for the respondent that the
evidence proved that the appellant received the motor vehicle knowing
it to have been stolen.
We
were satisfied that the concessions made by counsel for both parties
were properly made.
We,
after hearing counsel's submissions on sentence and hearing the
appellant's father's evidence in mitigation, set aside the
appellant's conviction on armed robbery and substituted it with one
of receiving stolen property knowing it to have been stolen. We also
set aside the Regional Magistrate's sentence of 10 years
imprisonment with 1 year and one and a half years suspended on
conditions of good behaviour and restitution and substituted it with
one of 7 years imprisonment with 2 suspended on conditions of good
behaviour.
We
gave our brief reasons on tapes and indicated that a detailed
judgment would follow.
In
his submissions against the appellant's conviction on armed
robbery, counsel for the appellant submitted that the doctrine of
recent possession does not apply to robbery.
Counsel
for the respondent,
in his submissions, submitted that he has not been able to find a
case where it was applied to robbery but submitted that it has been
used in housebreaking with intent to steal and theft cases.
This
is an important point of law which this court must determine even
though this case can be resolved without relying on the doctrine of
recent possession.
In
the case of S
v Parrow
1973 (1) SA 603 (A) referred to by counsel for the respondent, HOLMES
JA…, said:-
“I
pause here to refer briefly to the so-called doctrine of recent
possession of stolen property. In so far as here relevant, it usually
takes this form. On proof of possession by the accused of recently
stolen property, the court may (not must) convict him of theft in the
absence of an innocent explanation which might be reasonably true.
This is an epigrammatic way of saying that the court should think its
way through the totality of the facts of each particular case and
must acquit the accused unless it can infer, as the only reasonable
inference, that he stole the property. (Whether the further inference
can be drawn that he broke into the premises in a charge such as the
present one will depend on the circumstances). The onus of proof
remains on the State
throughout. Hence, even if after the closing of the cases for the
State and the defence, it is inferentially probable that the accused
stole the property, he must be acquitted unless the only reasonable
inference is that he did so for the law demands proof beyond
reasonable doubt.”
I
respectfully agree with the learned judge of appeal. The important
aspects of HOLMES JA's decision in S
v Parrow
1973 (1) SA 603 (A) are:-
(1)
The doctrine of recent possession is based on an inference being
drawn that the possessor of recently stolen property stole the
property.
(2
If he cannot give an innocent explanation of his possession; and
(3)
The inference that he stole the property is the only reasonable
inference that can be drawn from such possession.
In
other words, recent possession can be used to found a conviction if
the court, after sifting through the whole evidence before it, finds
that the only reasonable inference which can be drawn from the recent
possession is that the accused stole the property.
In
the case of S
v Parrow
1973 (1) SA 603 (A) the doctrine was applied to a house breaking with
intent to steal and theft case. In my view, there is no reason why
the doctrine cannot be used in any case of which theft is a component
- like robbery. It would be absurd for the court, in a robbery case,
to be satisfied that if it was only dealing with theft it could have
drawn the inference that the accused stole the property but hesitate
to find that since he stole the property he is the robber. There is,
in my view, no reason for the hesitation. If the doctrine can be
applied to house-breaking with intent to steal and theft cases there
is no reason why it cannot be applied to robbery cases. The issue
should simply be; does the evidence of recent possession prove he is
the thief? If it does, and the stealing was during a robbery, then
he will have been proved to be the robber just as such evidence can
be used to prove that the thief is the housebreaker.
In
the case of Black
Samson v The Queen AD
106/69 BEADLE CJ…, said:-
“It
appears from these cases that where fairly shortly after a
housebreaking, the accused is found in possession of some of the
articles which were stolen at the time and does not give an
explanation that he received the stolen goods from a third party who
may have stolen them, the court is perfectly justified in finding him
guilty not only of housebreaking but also of the theft of the
articles stolen at the time when the housebreaking occurred. The
reasoning behind these cases is that where the evidence is sufficient
to establish the fact that the accused stole a particular article
from the complainant and if the theft of that particular article
involved housebreaking, that evidence is sufficient to establish that
the housebreaking which occurred at the time of the theft was
committed by the accused…,.”…,.
In
my view, this also applies to a person who is found in recent
possession of goods stolen during a robbery. If the only inference
that can be drawn from the totality of the evidence is that he stole
the goods then he can be convicted of the robbery of those goods and
others robbed from the complainant at the same time….,.
These
then are our reasons for setting aside the appellant's conviction
on armed robbery and substituting it with one for receiving stolen
property knowing it to have been stolen…,.
