Gilblon s/o Menyo vs Republic (HC Criminal Appeal No 38 of 1998) [1998] TZHC 2342 (2 December 1998)

nr TEJ::,~ HIGH COURT OF TAHZAfiIA AT TABORA •• ;t;:r·e-:-e ~ ATPELLATE JURISDICTION' (HJ) CHIJ.T.IJ:TAL APJ1:.AL no. 38 OF 1998 (OHIGiiifAL CRTIUNAL CA:Jg no. 96 OF 1993 OF DISTRICT COlmT OF IGBOITDO DI3~£'HICT AT KIBOITDO .......,....,...: ........ :.--~ Before: P.Y. MAU1ffiA • .-Esq • .,, DLSTTIICT F'lAUI.3TilAT 1 ~~ TTlE Rr£:PUBLIC ••••••••••••••••••••• APflLLAHT (Original Prosecutor) Versus •• • • • ~ • • • • • • • • • .. • o'e • • • • • (Original Accused) J U D G- HJ.~ I'T T ~~ .... -- ...... •.--..-. ... The appellant., Qibl..?P...PL..?..Jinro., w-o:s charged on two Counts, with another person called Goodluck Men:vo~ These were charges· of burglary c/s 294 (1) of the per:inl code and robber-y with violence c/s 285 and 286 of the .. -· .. _..,.,;- .... ·- ·- --renEI' Cfode-.--' Tl1 ··p1.e·;C~•t· -n~pe llant ~t!:.Pl:5?EL was ·convicted on 1Joth Counts, a.nd sentenced to· four years imprisonment on the first Count., v.nd fifteen years imprisonment ob the second. count. These sentences were orde-red to run concu- rl"Gntl:v. Tho.t is to say., the appe llci.nt is now serving

• c.. term of 15 yea.rs imprisonment. The second person Goodl uck wo.s acquitted. Ee was., O:ctm111y 1 acquitted in absentin. It is said he had absconded. The present appollnnt now o.PPeo.1s ::v~:c.inst both oonvic•tion o.nd sentence. Ml"• Et~ampomo..,. learned state attorney, supports both conviction o.nd sentence •. L

2 1 i'hese o.re, ba,sica-1171., ·the facts of the cn:se = 1 l1he complainant, Deogrntins s/o 8a.lut1,rn, PW3, ha.d int01.1ded to go to Arus·ha. · · IIe left his home vil+age rm1zu, on 5/6/93. He, .however, stopped nt Kibondo. The following morning news reached him tho.t bo.ck at home, . .. some thJ:lngs ho.d burgled into· -his house, o.t night, with . -r·. a pnngu ru1d stick and ho.d.- stolen from his house o.n assortment of articles. The a.rticles :included n Radio, _ ................. - •• .&.- ---- o. r,1e,J,,c.1 pot, two. glasses., ond three p:.e,_9es of khnngn·. . 0 . . On tp.e fnteful dny,A,d,_o,lfE? .. !:i.}"!!, PH1, t?e wife of· Dcogra.tio.s,_wa.c sleeping in her house. _Indeed, o.t 2.00 n.m. a huge stone got hurled Ci.nto the door of his house and. the door let ·1oose·. Two bandits entered,one holdi.YJg u pn...iga c..nd the other holding a. stick. These took o.wo.:1 Jchc articles and went away. It uppea.rs certain thn.t these two b::mdits were not identified properlr. f) the ro.dio of the complnino.n_t. He wri.n:.: also caught with tl1c _two r-;:lo.sses nnd a meto.l pot. 1 :rhe appellant a.greed·. tb.ett these items belonged to Nr • .Deogrnti;:is ,So.lutwe,· H·J3, . but argued thett he ha.d bou.ght t_he sc,me fro1n a. parson who wa.s o. guest a.;t his (o.ppc.Hlnnt's) dJ:>inkir.1_e..;__",pEE..!, Ho did not, . -howevor, 1:now the riume of that. person. Apptillo..nt, however,; ' - sc,id. tllnt he bought the rudio in pr•e sence of' -people, mGntioninr; their no.mes us· !f2.R.F.a .. I'! .• _t[_tl2, o.nd pteve_D.Pfl.J .. f::.Y~~~ These people;· sho never 90.lled -~i.s witnesSErne: ["5o, on 5/6/93, c..lmost fourteen da:vs us I so.id befor,,c; tt.10 o.ppGlla.nt wa.s caught with the radio. Ho Wf:!.s with it ·

0 3 - • caw-;ht with the radio., he was escorted hor11e where, after - a search, they discovered the -_1;!10 ;{J-}f~!!3S' and the metal pot (sufuri_a) • In Court, indeed, the appellant maintaj_ned throughout . th 2 .t the radio and the other ite·ms were sold to him ·and that in no wa;; did he steal t:1em from the complainant. 1 fi.,e __ magistrat~, however, disbelieved him end convicted . him. Mr. Mwampoma sa-ys he was well convicted but n·ot on identification - as such, but on tb.e doctrine of '£2......epJ,_ E!?.Pj}}?..;.~fu= Mr. Mwampoma went further to· submit that if the ffonviction was all that sound, then., the app0llant should be sentenced to 30 years imprisonment. I have considered the evidence in this case met:foulousl:v. The -appellant seems to have been_ consistent ...... _... , ........... :...,._ in sa;;rinr; that he really bought the radio- and the other item from a person. He says it is true he paid Shso 13,000/= for the radio. He sarn that that person actually gave b:1 the complainant to have been his (complainant's). After uch thought, it looks to me as pro)2bJ9. that tho appellant was an innocent pur>chaser. :It is true th.art he is now realising that he was?foolisl.1 to ·have bought a r>adio in such circumstances-. 1 :P.he· doctrine of recent possession lla.s been aptly put up b-y judges in several cases. One such case is the case of ;}eorgE:-~~1!.--_c>.oro,wsk:L.Y~~~~ZS I T.L.R. (H.)322, at page _323 whre Wilson·.Ag, C.J. is reported to have said: ' tt~:he· doctrine of "rece!'lt -possessionH •

• "that the possession of property : recently stolen raises a d.iscret:i.onar.y ·presumption that the possessor is eit.her the actual thief or else a guilty receiver -

4 is so well 1mown as hardly to need Pe-statement. The presumption of fact thus raised is, of course., rebuttaple and in thts as in other Criminal Cases., t.o prove the ace used 's guilt be-yond re as·onable doubt. 11 ' '1.1 L n {R) at page 201, especially at page 202 says: 11 The law on the subject of recent possession is this: If a person is '"' in possession of stolen property recently . after. the stealing, it lies on hirn to account for his possession ·.and if he fails to account for it satisfactorily, he is. reasonabTy presumed to have come by it., dish.onestly. It depends on the surrounding circumsta.nces whether he is guilty of receiving or stealing. Lapse of time progressively weakens the presumption and finally etinguishes it. Wb.en possession is not recent, no presumption of guilt a1•ises from the mere fact of possession, for at ·. ·this stage nit might reasonabl;;r be inferred thi:it the prisoner had corne honestly b-y the propert-y 11 • In deciding the question of '· wbether possession is recent relative to the stealing, regard must be had to the character and value of the p!."operty. 11 If, therefore, my doubts are reasonable I that there is a probability that tbe appellant botl<q:ht the radio, foolish as he might he, then., surely, the appellant ought to have been given the benefit of doubt vis-a-vis the l"'bbbery itself. Sir Ronald Sinclair G., J in an obiter., I 8~m told in ·the ·case of p_mparl,s.--~:.t1...i . .Y.• ./19617 at page 647 said:

5 11 In all these cases·fpossession cases a1d race i ving case iJ the defen9e is r:G.J never required to do more tb.rm sb.ow an explanation which is reasonably ·possible in the circumstances: Suc.h c1.ses are not really cases of onus 01.., · ppoof upon. the defence in the persuasive sense, for, in truth in such cases the onus is upon the prosecution throughout to prove every · essential of the offence beyond :r·eaaonable doubt and it never shifts to tbe defence, but the prosecution ma:v be established if the facts ·Pl''oved call· for some ·explanation and no reasonable explanation is forthcoming. In all such cases if an explanation is given it must be completely rejecte~ aa a resonable possibility or else the prosecution will fHil 11 As I said earlier, tb.e appellant says he bought the . radio, and went pu,blic with it. I.-Ie was listening to it in a- pub. He agrees to bave been fool:lsh, but he maintains. that he_ bought it.· I wi11 accept tllat he was foolish enough to have bou:-;ht the radio., and even the· other small thin~;s (glasses and sufuria) in those circumstances. I will rtive him the be_nefit of doubt. I will, however accept that he received or bought the items if not knowing that they were stolen., but with ree.sonably good Peasons . . . for lmm-Jing that they were stolen. I:Te is convicted under s. 311 (1) of the .penal code. What of th.e sentence? I see that, he is in jail since 29/3/94, over f.9_!'_ -> yeaPS ago.. i"our yeaPs of incarceration I think is enough. I sentence him to such term of iprisobment a will result

0 6 il1to bis j_mmediate release from prison f' The appe 1 lant ., ' should b~ set free. SA};C rn~ JJOOE 2nd Dec 7 rnbf 1,998 1·1;r'.ci2-~~~-!!J't'; State A ttqrt.ier f. 1 r · Fepb-i(1a·;.:,·onden ! Anne 1 J. a..."1 t.s : ~:- ~-. ...... --..... . ...,..,,._-.-..., Absent,. . t . '