CRI/A/26/87

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

ERNEST MOELI Appellant

VS

REX Respondent

JUDGMENT

Delivered by the Hon. Acting Mr. Justice M.L. Lehohla on the 29th day of June, 1987.

The above appeal was argued before me on 26th May 1987.

The appellant was charged in the court a quo with housebreaking with intent to steal and theft of a Television set the property of or in the lawful possession of one Rev. Mahlatsi. The appellant pleaded not guilty but was convicted as charged and sentenced to a fine of M150.00 or a term of nine months' imprisonment. He appealed to this Court on conviction only.

The events leading to appellant's conviction appear in the record of proceedings in the court a quo wherein evidence led by the crown disclosed that P.W.1 Rev. Mahlatsi a priest at St. Monica Mission left his station for Maseru at 7.00 p.m. on 14th March 1986. Before he left he had properly closed and locked the house where he stays alone. Three and half hours later when he arrived at his house he saw a hole in the window. He could see the curtain flying outside and took fright about what might have happened in his absence from the house and therefore instead of entering it he hooted his vehicle. After some

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some time he went to the Seminary to ask some boys to come with him to the house because he suspected and feared that there might still be some people in that house.

At page one of the record in his evidence in chief the complainant states that on coming into the house after unlocking the door he noticed that the book chest which had been placed against the window had been moved and books thrown about in the sitting room. Thereupon he quickly noticed that the white T.V. set was missing from the position where he had placed it above the radio gram. It is note worthy that in describing it to the Court a quo as shown in page one he said and I quote

"Its serial number is 58114. There is a big (sic) at the beginning and 2 at end it is big A/58114/2 I wrote these numbers on my manual so that I could be able to report if I am in difficulties. It is written behind the television."

It is common cause that complainant's house was broken into and that means of gaining access into the room from which the T.V set was removed was through the broken window.

When reporting the loss to the police it appears P.W.1 referred to a line or scratch on the T.V. which he mentioned as not "easily recognisable." He also explained to the police that part of the aerial and cream coloured length of electric cord which he had sharpened with a knife had also gone missing along with the T.V. set.

Three or four months after he reported the loss he was once more asked by some police officer to whom he had made an explanation of his loss previously. The police officer left P.W.1 and told him he was going to fetch the T.V. set

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and further that P.W.1 should have its papers ready.

In evidence before the court a quo he is recorded on page 2 as having referred to the line he had earlier referred to. Furthermore it is significant that while at St Monica where he had gone with the police this line could not be noticed until the top of the T.V set had been dusted He also pointed out before court the now shortened part of the cord together with which the T V set had been stolen The portion of the cord which he had sharpened was missing.

Under cross examination it was revealed that there were four licences covering the years 1983, 1984, 1985 and1986 but the payment was effected on one day. This according to P.W.1 was because he was in arrears with his payments of the licence fees.

it was also revealed under cross-examination end conceded to by the witness that in the remarks column only 58114 appeared and no A and 2 appeared, The witness was referred to another scratch on the T.V regarding which he was asked if it was included in his description. His answer was

"How could I mention this other scratch I did not know." The court recorded the following remark "The attorney shows another line to court which is not clearly visible it is seen from only one angle."

P W 1 indicated that as he had bought this T.V. set way back in 1980 he didn't know where he had placed the invoice papers.

The Court further inquired as follows :

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"Did you see A here clearly - I thought that was A",

The main thrust of the appeal is that the learned magistrate in the court a quo erred in convicting the appellant in the face of the fact that the identification of the T.V. set was not positively made out as complainant's property. Indeed appellant's counsel took much stock in this aspect of the matter.

At page 4 of his heads of arguments Mr. Mdhluli for the crown submitted that

(h) "the complainant identified the T.V. set by reference to the serial number which he described as 58114, page 1 of the judgment, and he further produced licences issued by the post office reflecting that he had paid the required licence fees on 24th February, 1986. See page 3 of the judgment.

(i) that the licences issued to the complainant bore the number 58114 under the remarks column on the licence,

(j) that the complainant further identified the T V set by means of a scratch mark thereon,

(k) that only one T.V. set can have a particular serial number."

It is not without significance that while the theft occurred on or about 14th March 1986 the licences bearing the number 58114 were issued on 24th February 1986 thus ruling out any possibility that they were not genuine documents or that they were fraudulently obtained for purposes of strengthening complainant's claim to the T.V. set.

Mr. Mdhluli properly conceded that there were minor discrepancies in the crown evidence but was quick to submit that they were not material for the serial number tallied with the actual serial number observed on the

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T V set when it was opened up for inspection. Although I hold that the discrepancies were not minor yet their significance paled in the face of the relevation produced by opening up the T.V. set for inspection.

The T V set in question was recovered by the police at a shop owned by one Mojaki Ramakhule who in turn stated that he obtained it from the appellant to whose house the police were led. Appellant admitted that this TV set was his as he had bought it from Ficksburg in the Republic of South Africa.

It was submitted on behalf of the crown that the complainant was not confronted with any evidence in cross examination as to who the owner of the TV set was in line with the challenge levelled against complainant's ownership of the T.V set. Further that failure to cross examine the complainant in this regard served to strengthen in the mind of the Court below that complainant was the rightful owner of the T.V set. Indeed it is trite that there is no obligation on the part of an accused person to give evidence if he chooses not to. But if at the end of the crown case it appears that there has been established against him a prima facie case then in certain circumstances it becomes conclusive if the accused declines to give evidence. The burden of proof resting throughout on the prosecution to establish the guilt of the accused beyond reasonable doubt.

I find that the summary made by the Crown in relation to the fact that there was no acceptable evidence before the court below that the T.V. set belonged to appellant's or Ms Makhele or Mrs Makhele or even Mr. Makhele was

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properly founded as it seems to me that these titles preceding Makhele's name merely serve as a red herring across the trail,

As indicated earlier the crown case is not without discrepancies. The High Court Act 5 of 1978 in section 8(2) provides that

"when considering a criminal appeal and not­withstanding that a point raised might be decided in favour of the accused, no conviction ...... shall be set aside . by reason of any irregularity . unless it appears to the High Court that a failure of justice has in fact resulted therefrom."

In keeping with the wording of the above section Miller vs Minister of Pensions 1947(2) E.R. at.373 states that

"The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice."

It would be idle therefore in the face of evidence placed before Court to speculate on what possible factors would entitle the appellant to acquittal or even benefit of doubt for as stated in R vs Mlambo 1957(4) SA at 738,

"An accused's claim to the benefit of doubt when it may be said to exist must not derive from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with or outweighed by, the proved facts of the case."

In keeping with what the record revealed at page one the learned magistrate indicated at page two (b) of his reply to appellant's grounds of appeal that

"P.W.1 first gave the serial number of his T.V. as 58114 only afterwards did mention there was a capital A before that number and 2 after that number both of which did not form part of the serial number."

It is clear from what the trial magistrate who was the

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man on the spot end who had an opportunity to actually observe the exhibit that, to use his words,

" ..... It is not only P W 1 who could make a mistake on these hidden numbers."

There can hardly be found any fault with the conclusion reached by the Court below in the absence of an explanation from the appellant as to how he came to be in possession of the T.V. set that an inference would follow that the appellant was the person who broke into the house of the complainant and stole his T.V. set on 14th March 1986.

I am disinclined to interfere with the verdict reached by the court below. The appeal is dismissed.

ACTING JUDGE

29th June, 1987.

For the Appellant : Mr. Seotsanyana

For the Crown : Mr. Mdhluli.