Asha Abdallah vs The United Republic (HC Criminal Appeal No. 134 of 1989) [1990] TZHC 47 (10 October 1990)

___ ,.. ...... . ----· I I \ \ . --~. IN THE HIGH COURT OF /77 (. h..(~~ TANZANIA AT DAR ES SALA/\M

• • -- : .. . ••j ~ r'/ -- _ ..,.,....., ,.,/· AFPELLhTE JURISDICTION ' "'·-~ HIGH COt.raT· CRll'1INAL P·EAL NO. 124- 0 0: 1989' ' ... ,,tFrom original Criminal case No .:it,6..9 of 1988- of the · · tie--'t-- of ,Kilo_a. Distri-ci: -t 10.losa) .... : ___ .. .. . ASHA LAH /,,.. APPELLANT ( Original ).°cu·sed) . i' -· ' ___ ._,.,,., ....... ., ... vesus I THE UNITED RESPONDENT (O,rigj.nal proacutor) JUDGMENT MSUMI, J. The District ·court 0£ Kilosa presided by the Pr:i.J1:cipal .• '.. '• d District Magistrate convited th appellant of being in posae- / ssion of goods suspected'. to haVe been stolen or unlaully acquired ·contrary to ,etion 312( 1) (b) of the Penal COd_. It is alleged that ,fner{ the· house pf he appelia:n.t was seached .. ,/ ., . by a police o~f'i.~ arlJled with a seat-ch warrant npparantly issμed under sc=td.o J8( 1)---c:rr1, the Criminal Proc.edure Act, one radio . ,./ ·., '' . c~-=-...-<:te was foqnd thein. The said radio cassette was seized . ./ ' .• t on....._ th.e.--...s-tnSJ>i,c_io that ;.it was l.ar~eneousl.y acquired hence the ' charge against .the app/ellant. After convicting the appe1lant,. ; if the learned trl magstrate pl.aced the appellant under pr9bati.ony .. __ but nothing was said o:n the ispos it ion rad;tcr' cassette_. This 1appeal is ag/;\inst ' of the said -alleged stolen the conviction oupled with a specifi praya that the radio cassette be restored to the appellant. I It s c::J_e.ar fron( the record that the house ot the appellant was searched and from· therein the radio cassette ih issue was recovered. But righ from the time when the search was conducted to the time when she, gave her defence in court on oath appellant l consistently maintaied that she bought the said radio cassette •••••••• /2

,;.. • • 2 < -•"'·.• ... ?~~, ':! • <';: .. ---------- ·f'rom one Mzee Omari for shs ,000/::: out ot: which she had already paid Shs. 2, 700/=-• - To substantiate her claim, appellant produced be:fore the court a chit in which the said Mzee Omari is a:cknowledging recei::::>t of Shs. 2, 700/= being part payment for the sale of his radio cassette to the appellant. Appellant's story was further corroborated by the .testimony of' Mbaya Salum Mbegu who alleged to have witnessed the said sale of' the radio cassette I ani amazed tq note that the learned trial agistrate, with his ong---e.-xp er :i enc e. 9 .. --6].arine;!y--mi:-fJ.d.i.r se ted •··hJ.ml,.&---on. -- •ue1.t _ ~ 1-eiae- - ____ nt.ary--legal pr iilciple e.s the ·-------- . The magistrate apears to be burden of proof' in criminal eases. tif the opinion that where there is the burden o accused person, the I statutory provision, shifting sandard of-proof raquired to tively high• This is clearly said:- discharge huch burden is compara- 1 illustrated in his judgment when he, · 11 In a case like the one now against the accused, the burden of accounting to the court placed by the law on accused-is of' a \rery high standard. Aceused-t·.s. e.CCQUJlt--must--reasonnbly satisfy the ·court that the property assoc·iated with the charge against him or her was acquired lawfully. In· the instant case bare assertions by the aeeu.s.ed- ·--:--. -- that the property was perhaps purc-ha,sed-by her ·-. ___ l.awf.ull __ LG-a"V'13.a: __ JJJU-Ch to be desired. A:fter all if' the alleged sale transac-tion was lawful she could have definately brought the said Mzee Omari before the police to clear the matter or before this court to testify in these proceedings. One who indulges in such business transactions cannot later expect the protection of the law.· I accordingly fnd the accused•s assertion unreasoably true". (emphasis supplied). When the burden of proof is statutorily shifted· to accused pe~son as in this case, such burden is sufficiently discharged by accused giving an explanation which is reasonable. Su.ch j

3 explanat.i.on naed :not necessarily be true; it i_s enough i:f ---:;U:..---i:.-s reasonable. In fe.ct accused is not required to prove or establish anything in order to discharge the burden. Like in other criminal cnses~ t·he burden is always on the prosecution side to prove the guilt of the accused beyond rensonable doubt. In the present case what the law requires the accused to co iG to explain reasonably how she came to be in possession 0f the alleged suspected stolen radio cassette.· she is not required to setisfy the court on any standard 0£ certainty that she innocently cquired the radi? cassette in question. The learned trial magistrate dismissed the appe- llant's explanation because it is "unreasonably- true". In other words what he is se.yinti is that though-appellant's explanation is true, it is ::io-::: however, re"lsonable. With respect, there is no sense in this statement. The only ctegories of truth I am aware of in legal :;_Jrle.nce i!3 ·either half truth or whole truth; there is nothin like unreasonable truth and reasonable truth. The trial court's judgment is also faulty on another substantive ground. 'l'he police officer who sea.rehed the house of the appellant and consequently seized the radio cassette in question derived his authority under section J8( 1) 0£ the Criminal procedure Act. For the in:formation of: the learned trial magistrate, subsection (4) of section J8 says:- 11 No prosecution resulting from the exercise of poaara under this s~ction shall be commenced v·rithout the consent of the Director of Public ?rosecutions 11 • This mandatory provision was not complied with in this ease hence all the p.roceecings are illegal. J stated two grounds viz the trial magistrates ,· misdirection on the ::,rinciple of burdem of proof and lack of the consent of the Director of Public Prosecutions, this appeal

-/ / / / I / / I 'I / / i -fs allowed. Conviction is quashed ;\nd the pro1:?tion order is set aside. The redio casette is to be returned to the appellant• In Cc,!38 the said -redio cassette, for ,som·e reasons, ~annot be restere<:1 to ~,000/=· the appellant• .she- ·should be paid Shs. 10/10/1990 • I