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.

2

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.

3

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.