CRI/A/25/85
IN THE HIGH COURT OF LESOTHO
In the Appeal of
REX Appellant
v
SERA MPHAFI Respondent
REASONS FOR JUDGMENT
Filed by the Hon Mr. Justice B.K. Molai on the 16th day of August, 1985.
I have already allowed this appeal and the following are my reasons for the decision
The Respondent and three other persons appeared before the subordinate court of Leribe charged with contravening s.3(2)(a) of the Internal Security (Arms and Ammunition Act No.17 of 1966, it being alleged that on or about 20th February, 1985 and at or near Maputsoe in the district of Leribe, the Respondent and his co-accused did wrongfully and intentionally have in their possession two revolvers and 29 rounds of ammunition without a licence.
When the charge was put to them, the Respondent pleaded guilty while his co-accused pleaded not guilty. The public prosecutor accepted the plea as tendered by both the Respondent and his co-accused. The co-accused were accordingly acquitted and discharged. The trial then proceeded against the Respondent alone
In terms of the provisions of S 240(1)(b) of the Criminal Procedure and Evidence Act 1981, the public prosecutor outlined the facts he had in his possession. The Respondent who was represented by a legal counsel accepted the facts as outlined by the public prosecutor and they, therefore, became evidence
The learned trial magistrate considered the
evidence and returned a verdict of "not guilty and discharged." It is against this verdict that the Director of Public Prose.
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cutions has brought this matter to the High Court on a stated case.
Briefly, the evidence was that on the night of 20th February, 1985, the police officers came to a house, belonging to one of the three co-accused, where they found the Respondent and the co-accused sleeping The police officers woke them up and carried out a search with the permission of the owner of the house. In the course of that search two loaded pistols and eighteen (18) rounds of ammunition were found The rounds of ammunition were actually found in Respondent's coat which was hanging on the wall.
When the police officers asked as to whom the pistols and the rounds of ammunition belonged, the Respondent replied that they were his property. A certificate authorising him to possess such articles was demanded from the Respondent who, however, failed to produce any. The Respondent and his co-accused were then cautioned and charged as foresaid.
In his judgment, the trial magistrate and, indeed, also the defence counsel, took the view that as, on the evidence, the police did not warn the Respondent and the co-accused in terms of the judge's Rules before questioning them, there was no proof that the Respondent's admission which amounted to a confession was freely and voluntarily made It could not, therefore, be relied upon for the conviction of the Respondent who was accordingly rightly acquitted and discharged
I was unable to accept this view. As it was put, and correctly so in my opinion, by the learned authors, Butter and Garsia, in their work Archbold Criminal Pleading Evidence and Practice (3rd Ed) Chapter 10. S.1118 at p 422
"When a police officer is endeavouring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not from whom he thinks that useful information can be obtained.
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2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions or any further questions as the case may be."
In the present case the police officers found the firearms and the rounds of ammunition during the search of a house in which the owner thereof was sleeping with other people. Although the legal presumption is that the articles belonged to the owner of the house, that presumption is, however, rebuttable. The articles may well have belonged to any of the other people who were sleeping in the same house It seems to me therefore that at the time they put the questions which the Respondent replied, the police officers did not know the exact owner of the articles they had
found in the course of their search and their questions were aimed at establishing precisely that. It cannot, in the circumstances, be said that the police officers had already made up their mind to lay a charge against the Respondent. That granted, there was no need for the police officers to warn the Respondent, or any of the occupants of the house for that matter, in terms of the judge's Rules.
It was argued before me, on behalf of the Respondent, that his admission that the firearms and the rounds of
ammunition belonged to him did not prove possession for possession and ownership were two distinct concepts which were unrelated. I was not convinced. The pistols and the rounds of ammunition were found in the very house in which the Respondent was sleeping. He claimed them as his own property Indeed, the rounds of ammunition were found in his own coat. Considering this evidence as a whole the only reasonable inference to be drawn was that the articles were in the possession of the Respondent and not any of the other occupants of that house.
In the light of all this, I allowed the appeal, set aside the verdict of "not guilty and discharged" returned by the trial
magistrate and substituted therefor a verdict of "guilty as charged."
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It was ordered that in view of this decision, the proceedings should be returned to the trial magistrate who should cause the Respondent to appear before him and sentence him accordingly.
B.K. MOLAI
JUDGE.
16th August, 1985.
For Appellant Mr. Kalamanathan,
For Respondent Mr. Sello.