CRI/A/2/92
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX
V
DAVID THANDINKOSI JUQU MLAMLI KASANA
Before the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 13th day of January, 1992.
For the Crown : Mr. G.S. Mdhluli, Director of Public
Prosecutions
For the Respondents : Mr. L. Rakuoane
JUDGMENT
Cases referred to:
Thomo v R (1978) LLR 302;
Khumalo & Anor. v R (1979)2 LLR 412.
On 3rd January, 1992 the respondents were charged before the Senior Resident Magistrate for Maseru of dealing in a prohibited medicine or plant from which such medicine can be manufactured, contrary to section 3(a) of the Dangerous Medicines Act, 1973. They were both found "not guilty and discharged". The Director of Public Prosecutions appeals against such decision.
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When the two respondents, both Transkeians, apparently about to depart from Lesotho, came before me on Friday 10th January, the learned Director, Mr. Mdhluli sought an urgent decision from the Court. In the same afternoon I allowed the appeal, reversed the decision of the Court below, found both respondents guilty as charged and convicted them accordingly. As in any event the learned Attorney for both respondents, Mr. Rakuoane, required an adjournment, to consider mitigation of sentence, I reserved my reasons and adjourned sentence to this morning, which reasons now follow.
The first aspect which concerns me is that of jurisdiction. Before the advent of the Subordinate Courts Order, 1988 appeal by a prosecutor lay, under section 73(2) of the Subordinate Courts Proclamation No.58 of 1938, against the dismissal of a charge on exception, or on the ground that it was bad in law or that it disclosed no offence. Appeal also lay by a prosecutor under section 73(7), by way of "case stated", against "a decision in favour of the accused on any matter of law". Where such appeal was allowed, section 73(10) enabled the Subordinate Court to "reopen the case" and "deal with it in the same manner as it should have dealt therewith if it had given a decision in accordance with the law as laid down by the High Court". Section 73(11) enabled the High Court in allowing the appeal to "impose such sentence upon the respondent or make such order as the Subordinate Court ought to have imposed or made ...."
Those provisions in my view enabled the High Court on appeal to
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substitute a conviction for an acquittal and to itself impose appropriate punishment.
The provisions of section 73 of the Proclamation were replaced by section 72 of the Subordinate Courts Order No.9 of 1988, under which the former right of appeal referred to above was re-enacted under section 72(2). The old case stated procedure was however repealed and in its place under section 72(6) appears the following:
"(6) If the Director of Public Prosecutions or his representative or a private prosecutor is dissatisfied with any judgment of a subordinate court on any matter of fact or law, he may appeal against such judgment to the High Court." (Italics supplied)
It will be seen that the right of appeal by the prosecutor was extended to a matter of fact as well as law, but in particular was extended to "any judgment" of a Subordinate Court, which wording in my view must include an acquittal. That view is reinforced by the provisions of section 72(8) which read as follows:
"(8) The court shall, if it allows an appeal against the conviction or the acquittal, exercise its powers under section 329 of the Criminal Procedure and Evidence Act, 1981."
Those provisions clearly embrace not alone an appeal by the accused against conviction but also an appeal by the prosecution
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against acquittal. As I see it, it was the intention of the legislature to retain the prosecution's right of appeal (indeed to enhance it, by extending it to issues of fact as well as law) contained in the old "case stated" procedure. That procedure however contained specific provisions as to the power of the High Court in the matter. Those provisions were replaced by the device under section 72(8) of applying the powers contained in section 329 of the Criminal Procedure & Evidence Act, 1981. That section reads as follows,however:
"329. (1) In case of any appeal against a conviction or sentence, which has not been dismissed summarily under section 327,
the High Court in its appellate jurisdiction, without prejudice to the exercise by the High Court of its power under section 73 of the Subordinate Courts Proclamation 1938 or under section 8 of the High Court Act 1978 -
Confirm the judgment of the Court below, in which case if the accused, having been convicted and admitted to bail, is in court, the court of appeal may forthwith commit him to custody for the purpose of undergoing any punishment to which he may have been sentenced; or
order the judgment to be set aside notwithstanding the verdict, which order shall have for all purposes the same effect as if the accused had been acquitted;
(c) give such judgment as ought to have been given at the trial, or impose such punishment (whether more or less severe than or of a different nature from the punishment imposed at the trial); or
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make such order as justice requires.
' Notwithstanding that the High Court is of the opinion that any point raised might be decided in favour of the accused, no
conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings unless it appears to the court of appeal that a failure of justice has resulted therefrom." (Italics supplied )
It will be seen that section 329 applies only to an "appeal against a conviction or sentence", whereas I am faced with an appeal against an acquittal. The provisions of section 72(8) of the Subordinate Courts Order, 1988 are subsequent in time, however, to those of section 329 and are unequivocal in stating that the powers under section 329 are applicable. In particular, I observe that section 72(8) does not apply the provisions of section 329 but instead applied the powers contained therein. In my judgment
therefore the relevant powers contained under section 329 are applicable in the case of an appeal by the prosecution against an
acquittal. Quite clearly the only powers which are relevant to such an appeal are those contained in paragraphs (c) and (d) of section 329(1). In this respect I consider that paragraph (c) is seemingly incomplete, in view of the use of the words, "such
punishment......". As is indicated
by the provisions of section 8(l)(d) of the High Court Act, 1978, I consider that paragraph (c) should be construed so as to read thus:
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"(C) give such judgment as ought to have been given at the trial, or impose such punishment (whether more or less severe than or of a different nature from the punishment imposed at the trial) as in the opinion of the High Court ought to have been imposed at the trial;"
In any event, it will be seen that the provisions of section 329 are exerciseable "without prejudice to the exercise by the High Court of its power under ..... section 8 of the High Court
Act, 1978". That section reads as follows:
"8. (1) The High Court shall be a court of appeal from all subordinate courts in Lesotho with full power -
to reverse and vary all judgments, decisions and orders, civil and criminal, of any of the subordinate courts;
to order a new trial of any cause heard or decided in any of the subordinate courts and to direct, if necessary, that such new trial shall be heard in the High court;
to send back any case heard and decided in a subordinate court with such instruction as to any further proceedings as the High Court may deem necessary; and
to impose such punishment (whether more or less severe than, or of a different nature from, the punishment imposed by the subordinate
court) as in the opinion of the High Court ought to have been imposed at the trial.
When considering a criminal appeal and
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notwithstanding that a point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record of proceedings, unless it appears to the High Court that a failure of justice has in fact resulted therefrom." (Italics supplied)
It will be seen that those provisions enable the Court "to reverse and vary all judgments ..... civil and criminal of any of the subordinate courts". That in my view empowers the Court to reverse an acquittal, It seems to me therefore that in the case of an appeal against an acquittal, it might have been more appropriate for the parliamentary draftsman to have made reference to the provisions of section 8 above, in section 72(8) of the Subordinate Courts Order, 1988. In any event, the above provisions of section 8 serve but to confirm the fact that an appeal lies by the prosecution to the High Court against an acquittal in a Subordinate Court.
I turn then to the facts of the case before me. Both respondents were represented in the Court below by Mr. Rakuoane. The record indicates that the charge was read and explained to them. When called upon to plead the record reads as follows:
"A1 - I am guilty but I was only told to carry it.
A2 - I am not guilty.
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Mr . Rakuoane:
My instructions are that the accused plead guilty.
Postponed to 7/1/92"
On the 7th of January the records commences thus:
"Court: The accused's pleas are a plea of not guilty by A2 and an equivocal plea by A1. In these circumstances I will enter a plea of not guilty in respect of both accused."
The Crown thereafter led evidence. Having had the charge read and explained to him, which alleged a dealing in as much as 883.6 kilograms of dagga, for the first respondent to say "I am guilty", legally represented as he was, amounted to my mind to a plea of guilty. To have added, "I was only told to carry it", can hardly be said to have introduced a defence: at the most it amounted to a statement in mitigation. The plea was reinforced by Mr. Rakuoane's statement, "My instructions are that the accused (presumably both accused) plead guilty". In my judgment therefore, what was said by the first respondent constituted, prima facie, a plea of guilty.
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As I see it, it was then the duty of the learned Senior Resident Magistrate to record a plea of guilty in respect of the first respondent and thereafter to call upon the prosecutor to render a statement of facts. Thereafter, on receipt of such statement, the Magistrate might determine whether or not it disclosed a prima facie case, that is, whether or not the plea of guilty was in fact unequivocal.
In any event the matter proceeded to trial. The evidence indicated that on 28th December, 1991 both respondents, who had entered Lesotho that same day, approached a road block manned by members of the Police and the Army, on the Mafeteng road near the junction with the road leading to the International Airport, at 11.35 p.m. from the direction of Maseru, in a vehicle (a canopied half-truck")
driven by the first respondent. On nearing the road block, the vehicle described a "U" turn. Those manning the road block
attempted to stop the vehice. Two shots were fired at the vehicle: it accelerated. Then a shot was fired at a front wheel of the vehicle: the tyre apparently punctured and the vehicle careered into a ditch. Police officers approached the vehicle, on an incline in the ditch, and found the first respondent seated behind the steering wheel, pinned against the driver's door by his passenger, the second respondent, who had fallen against the driver. The police found altogether 69 bags of dagga in the vehicle. The respondents failed to produce any permit in respect thereof, when so requested by the police. The respondents were arrested and taken together with the vehicle and contents to the
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Central Charge Office. The following day the bags of dagga were weighed in the presence of the respondents at the Central Post Office in Maseru, where they were found to weigh a total of 883.6 kilograms.
Two police officers gave evidence at the trial, where the bags of dagga were produced as an exhibit. The first police officer, a Trooper, testified in chief as follows:
"The bags had holes. That is how I knew it was dagga. I recognized it was dagga, by smell and sight."
In cross-examination Mr, Rakuoane referred to the substance tendered in evidence as "dagga", some five times. The record then reads:
"Q. Have you ever appeared before the Court with a case concerning dagga?
A. Yes - in 1990.
Q. Was it your first case?
A. It was.
Q. Did you give evidence?
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A. Yes.
Q. Was it the first time you swelled dagga?
A. I was taught about dagga.
Q. Did you go for a course?
A. I was taught this."
The second police officer to give evidence, a Lance Sergeant, testified in chief:
"On arrival (at the vehicle in the ditch) we took out these people from the vehicle and we asked them what they had. They told us. They opened the vehicle and we found it was dagga. Some bags were torn. It smelled like dagga."
In cross-examination Mr. Rakuoane referred once again to the substance as "dagga". He did not however cross-examine the police officer on the nature of the substance tendered in evidence, or the police officers' knowledge of dagga.
The Crown then closed its case. The record reads:
"CROWN CASE
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Mr. Rakuoane:
We do not wish to give evidence. But there should be evidence that what is in question is dagga. See CRI/A/41/78 Thomo v R (1) (A certificate of (L.L.R. 78 302) analyst)."
The prosecutor then addressed the Court as to the sufficiency of the evidence, during the course of which address he observed, "There
is a case for the accused to answer". Mr. Rakuoane then replied:
We (are) not giving evidence. Is the Court satisfied as to the mass (sic).
It cannot be assumed that because the accused were found in the vehicle they are therefore in possession.
The prosecution has failed to prove that the policemen have enough experience of what the substance (is). I rely on Thomo v R (1) in this regard."
The prosecutor replied once again and then the learned, Senior Resident Magistrate delivered his decision in writing, which is entituled
"Judgment".
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There was of course no merit in the second submission, as to possession: the provisions of section 30(1)(e) of the Dangerous Medicines Act 1973 came to the aid of the Crown in the , matter. Thereafter the learned Senior Resident Magistrate, correctly in my view, observed that both respondents "were caught red-handed" in possession. He observed that the only issue raised by the defence counsel was whether the Crown had proved that the substance in question was dagga. He then considered the dicta in Thomo v R (per Isaacs A.J.) and went on to observe:
"Now the tropers who gave evidence say they know the substance to be dagga by sight and smell. One of the troopers (PW1) says
further that he was taught dagga. In my view this does not qualify as "details as to his expert knowledge" as laid down in this judgement. There is no detail in this mere allegation. A policeman who is on his second case of dagga can hardly qualify as an expert."
No doubt the legislature was aware of the difficulties the prosecution would face in proving cases of this nature. It provided
for a number of presumptions to ease this burden e.g. sec.29 provides that evidence of an analyst is prima facie evidence of the nature of the substance in question. However the clear implication is, as pointed out in Thomo's case supra, proof cannot be dispensed with.
Now apart from this presumption we have the test that has been laid out by Isaacs J. which, I have pointed out has not been met.
I reluctantly come to the conclusion that the substance has not been proved to be dagga as required by the Court.
The accused are found not guilty and discharged."
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The presumptions referred to by the learned Senior Resident Magistrate are of course to be found in section 30 of the Act. With regard to section 29, the section, as the learned Director submits, is purely prescriptive and enables the production of an analyst's certificate, as " prima facie evidence of the identity of the substance analysed, and of the result of the analysis", that is, without the analyst himself necessarily attending to give evidence, as in the case of e.g. a report by a doctor tendered under the provisions of section 223(7) of the Criminal Procedure & Evidence Act 1981. That does not mean to say however that evidence of the identity of the substance must necessarily be rendered by an analyst's certificate (though I do not say that the learned Senior Resident Magistrate adopted this position), and it certainly does not mean that such evidence may not be rendered aliunde.
As to the procedure adopted in the Court below, the first question which arises is whether the learned Senior Resident Magistrate was entertaining an application of "no case to answer", or was entertaining final submissions after the close of the defence case. It may be said that Mr. Rakuoane made the submissions he did make before the learned trial Magistrate had the opportunity of making any ruling in the matter, and in my view the only reasonable ruling which could have been made was that there was a case to answer. If however an application of "no case to answer" was contemplated, then I would have expected a ruling, rather than a 'judgment', to be delivered. Secondly,
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I would have expected the application of the appropriate test, namely whether, if the accuseds were not to give or adduce evidence at that stage, a reasonable tribunal might, but not necessarily must convict them.
I observe in particular that Mr. Rakuoane stated, not once, but twice, that he did not intend to adduce any evidence in defence. That aspect only arises however where the Court rules, pursuant to section 175 of the Criminal Procedure & Evidence Act, 1981, that there is a case to answer and thereafter complies with section 175(4). I can only conclude that Mr. Rakuoane accepted that there was a case to answer and then indicated that his clients would not give or adduce evidence. The irregularity here of course is that the learned Senior Resident Magistrate never recorded that there was a case to answer, and further, that the defence had closed its case, but whichever view one takes of the procedure adopted in the Court below, there is irregularity. In all the circumstances I am inclined to the practical view of the matter, namely that the defence having indicated, in any event, that no defence evidence would be led, the learned Senior Resident Magistrate accepted that the defence had closed its case and proceeded to judgment.
As to the merits of the learned Senior Resident Magistrate's decision, it will be seen that, he was guided by the dicta in Thomo (1). As the learned Director submits, that authority was overtaken by the decision of the Court of Appeal in the case of
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Khumalo & Anor. v R (2). In that case, Dendy Young A.J.A. (Maisels P. & Tebutt J.A. concurring) adopted an analysis of the case law by Cotran C.J. in the High Court, which I likewise respectfully and gratefully adopt. Cotran C.J. formulated the following three propositions:
It is open to a constable (or to any witness for that matter) to give evidence and testify that a certain substance or chattel or commodity or plant is X.
If an accused person does not contest or challenge the assertion or if he concedes by cross-examination or lack of it, that the substance or commodity or chattel or plant is X, that is prima facie evidence, but no more that it is X There may be an exception in the case of drugs or medicines in the shape of loose pills or tablets or liquid with no external markings.
If the constable's (or other witness') evidence about his recognition or identification of the substance or chattel or commodity or plant is challenged, directly or indirectly, it will become necessary for him to elucidate upon his experience or means of his knowledge, but not until then; in which event the court will have ultimately to decide whether to accept or not to accept the opinion preferred."
In considering those three propositions Dendy Young A.J.A. observed at pp.419/420:
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"In the first place, I think with respect that it is undesirable to lay down in advance what in any particular case will constitute
prima facie evidence. The degree of proof required to discharge the onus resting on the Crown may vary with the seriousness to an accused of the consequences of a conviction. In the second place, where a witness gives opinion evidence all that is initially necessary is for him to claim qualification without going into detail of his training or experience it is then up to the defence to take the matter further if so advised.
A witness cannot simply testify to the fact that a substance is "dagga" without laying the foundation for his knowledge. It seems to me therefore that a constable (or any witness for that matter) who gives testimony that a certain substance or chattel or commodity or plant is dagga should say that he knows it to be so because of his training, his experience (or) whatever other source of knowledge he possesses. I am dealing specifically with dagga - or other substances - where opinion evidence is required to establish the nature of the substance. I agree that it would probably be unnecessary in respect of, say, an unopened bottle of brandy or other liquor where the contents of a bottle which can be looked into apparently conform with all the appearances of a bottle of liquor of that particular kind and additionally the bottle bears a label stating that it is the liquor in question. But otherwise I think it is necessary for the witness to say how he comes to recognise the substance as dagga or any other substance requiring opinion identification. Often a mere statement to the effect that he knows dagga may suffice. However I think, subject to the aforegoing, I would, with respect, agree with propositions 2 and 3 put forward by the learned Chief Justice." (Italics supplied)
In the present case the police Trooper testified that he recognized the substance as dagga "by smell and by sight", and
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again, whatever about the fact that he had dealt with only one previous prosecution concerning dagga, he testified that he "was taught about dagga", in other words that he recognized it as dagga "because of his training". I cannot but see that that constituted prima facie evidence.
Again, the Lance Sergeant, though testifying that the substance "swelled like dagga", did not state that he had been trained to recognize dagga. Even though his evidence in the matter was not challenged at all, the witness' evidence does not, in the light of Khumalo (2), constitute prima facie evidence. I observe however that the witness testified that on arrival at the vehicle
"..... we asked them what they had. They told us. They opened the vehicle and we found it was dagga."
The Lance Sgt. was there no doubt reticent about the contents of a statement made to a police officer by an accused person. A statement that the vehicle contained dagga, would not have constituted a full confession however, and prima facie would have been admissible as an incriminating statement, there being no evidence of any involuntariness. The police officer did not say that the accused
persons made a false statement to them and the only reasonable inference flowing from his evidence is that both accused stated that the vehicle contained dagga.
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There is the aspect that questions framed in cross-examination of the two witnesses referred to the substance as "dagga". I would not however regard those questions as constituting a tacit admission in the matter (see Khumalo (2) at pp.413/415).
Again, the initial plea by the first respondent, having had the charge read and explained to him, constituted an express admission inter alia that the substance involved was dagga. The plea, having been rejected by the learned Senior Resident Magistrate however, must be rejected for all purposes: in any event it would not have constituted an admission against the second respondent.
Nonetheless, there was, I consider, clear prima facie evidence that the substance involved was dagga. Another aspect, which in the least tended to support such evidence, was the fact that the respondents attempted to avoid the road-block. Thereafter, the respondents failed to give or adduce evidence in their defence. While it in no way follows that a prima facie case necessarily becomes a conclusive case, in the absence of evidence to the contrary, I am satisfied that in all the circumstances of this case, had the learned Senior Resident Magistrate followed the authority of Khumalo (2) and had he correctly directed himself in the matter he would inevitably have convicted both respondents.
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For those reasons therefore I allowed the appeal, setting aside the findings and acquittals in the Court below and substituting therefor a finding that both respondents were guilty as charged and convicting them accordingly.
Delivered at Maseru this 13th Day of January, 1992.
B.P. CULLINAN
CHIEF JUSTICE
