Incomplete Judgement ((NA) No.) [1991] LSCA 148 (29 November 1991)

-3- p r e v i o u s ly been held. W h i le there was no need for such parade as far as the c o m p l a i n a nt w as c o n c e r n e d, quite c l e a r ly the absence t h e r e of rendered the i d e n t i f i c a t i on by the domestic s e r v a n t, as the learned Senior Crown Counsel M r. T h e t s a ne c o n c e d e s, a courtroom i d e n t i f i c a t i o n, some 21 m o n t hs after the event and w as c l e a r l y, in all the c i r c u m s t a n c es of no p r o b a t i ve v a l ue w h a t e v er . The appellant testified that he had spent the night in q u e s t i o n, one m o n th b e f o re his a r r e s t, at his m o t h e r 's home sleeping with his w i f e. Such aspect w as put to the d o m e s t ic s e r v a n t, though e x t r e m e ly late in the d a y, i m m e d i a t e ly before the Crown closed its c a s e. T e c h n i c a l ly speaking t h e r e f o r e, the Crown had n o t i c e, very short n o t i c e, of the a p p e l l a n t 's a l i b i, w h i ch w as in turn c o r r o b o r a t ed by his w i f e. When it came to i d e n t i f i c a t i o n, the learned trial M a g i s t r a t e 's judgment w as lacking in proper d i r e c t i o n. In this respect the learned Counsel for the a p p e l l a nt M r. Mda, w ho r e p r e s e n t ed the a p p e l l a nt in the Court b e l o w, refers to the cases of Moholisa v R (1) and R v Makhetha & Anor. (2) to which I would in turn refer the learned trial Magistrate. Quite obviously the complainant's identification was of the "fleeting glance" variety, under the pressure of fear and excitement. There is the /... -4- aspect that the appellant was subsequently recognized, but that was a month later. Further, it is clear that the sight of the familiar blanket and skipper was what attracted the complainant, leading surely to an association of ideas. The learned trial Magistrate failed altogether to consider these aspects and in particular the possibility of honest but mistaken identification and I am not satisfied that had she done so she would inevitably have found that the appellant had been identified beyond reasonable doubt. There is however the aspect that the appellant was found in recent possession of 22 stolen items. The complainant identified them as her family's property, and so also did the domestic servant, who testified indeed that she had been accustomed to washing the particular clothing. On the other hand, the appellant and his wife testified that the items were their property. Mr. Mda submits that the complainant had no difficulty in identifying the property, as it had been released to her by the police. Nonetheless the point is that she f i r s t i d e n t i f i ed the property in the home of the appellant ' s mother. In this respect the complainant testified that the appellant, while handcuffed, had on the pretence of /... -5- w i s h i ng to u r i n a t e, r un a w ay f r om h is m o t h e r 's h o m e, had f a l l e n a nd had b e en r e c a p t u r ed by a p o l i ce o f f i c e r. T he p a r t i c u l ar p o l i ce o f f i c e r, w ho a p p e a r ed as a w i t n e s s, g a ve no s u ch e v i d e n ce h o w e v e r, and the a p p e l l a nt d e n i ed the c o m p l a i n a n t 's e v i d e n c e. T he c o m p l a i n a n t 's e v i d e n ce h as a r i ng of t r u th a b o ut i t. It m ay w e ll be that the p o l i ce o f f i c er did not c o n s i d er the a s p e ct i m p o r t a nt and did not c o v er i t. It m ay be of c o u r se t h a t, as the a p p e l l a nt c l a i m s, the c o m p l a i n a n t 's e v i d e n ce w as u n t r u e. But e v en if t h at w as the c a s e, it i n d i c a t es that the P o l i ce T r o o p er did not s e ek to f a l s e ly i n c r i m i n a te the a p p e l l a n t. T he P o l i ce T r o o p er h o w e v er t e s t i f i ed t h at t he a p p e l l a nt did not c o n t e st the c o m p l a i n a n t 's c l a im to the p r o p e r t y. I n d e ed he m a i n t a i n ed that it w as the a p p e l l a nt h i m s e lf w ho p r o d u c ed the s t o l en c l o t h i ng f r om a t r u nk and a c a s e, w h i ch the a p p e l l a nt d e n i e d. T he a p p e l l a nt m a i n t a i n ed that w h en he e n t e r ed the b u s, a m a le p a s s e n g er a c c o m p a n i ed by t h r ee l a d i es c l a i m ed the a p p e l l a nt w as w e a r i ng h is b l a n k e t, o ne of the l a d i es a g r e e i ng t h e r e w i t h: the m an a s s a u l t ed h im a s s i s t ed by a CID o f f i c e r: h e n ce he had s u b s e q u e n t l y, w h i le h a n d c u f f e d, e s c a p ed f r om t h em and a p p r o a c h ed p o l i ce in a n e a r by p o l i ce v a n. T he a p p e l l a nt c l a i m ed t h at the p e r s on w ho a s s a u l t ed h im in t he b u s, a p p a r e n t ly the c o m p l a i n a n t 's h u s b a n d, w as /... -6- then present in Court. It was put to him that such person "was not in the Country at that time". The appellant maintained he was telling the truth, but nonetheless failed altogether to indicate in Court the person who had claimed the blanket as his. Again, he maintained that the male bus passenger made reference only to the blanket he wore. He never admitted that anyone, much less the complainant, had laid claim to the "skipper" which he wore at the time. In answer to the question, "Did the man and P. W. I (the complainant) refer to the blanket only?", he answered, "Yes". Therein he admitted that the complainant was on the bus and had laid claim at least to the blanket he wore, specifically denying thereafter that she also laid claim to the skipper, maintaining that she was lying. It was put to him that she had pointed out the skipper in Court, which he admitted. He also conceded that it had not been put by the defence to the complainant that no reference was made in the bus to the skipper which he wore. Further, he subsequently conceded that the police had taken from him "the skipper I was wearing". I cannot imagine why the police would take such skipper, unless it was the case that the complainant had identified the skipper as her husband's property. The appellant was clearly not telling the truth, therefore, and his evidence on the point can only be regarded as an effort /... on h is part to avoid the d o u b le c o i n c i d e n ce of w e a r i ng a b l a n k et and a s k i p p er s i m i l ar to that o w n ed by the c o m p l a i n a n t 's h u s b a n d. -7- T he learned trial M a g i s t r a te r e j e c t ed the e v i d e n ce of the a p p e l l a nt and his w i f e. T h e re is no doubt that she p l a c ed some r e l i a n ce on d e m e a n o u r, w h i ch as has b e en said so o f t e n, is the least r e l i a b le of f a c t o r s. T he l e a r n ed trial m a g i s t r a te o b s e r v ed h o w e v er that the a p p e l l a n t 's w i fe "did not seem to k n ow all the p r o p e r ty w h i ch she a l l e g ed was h e r s ", w h i ch is b o r ne out by the fact that the w i fe c l a i m ed that inter alia "four d r e s s e s" w e re t a k en by the p o l i c e, s u b s e q u e n t ly c o n c e d i ng that four s k i r ts had been t a k e n. T he e v i d e n ce for the d e f e n ce was r e j e c t ed on the b a s is of d i s b e l i ef as s u c h. T h at is not the proper test of c o u r s e. In v i ew of the u n s a t i s f a c t o ry e v i d e n ce of i d e n t i f i c a t i on the a p p e l l a n t 's a l i bi could r e a s o n a b ly be t r u e, but in v i ew of the p o i n ts I h a ve d e t a i l ed a b o v e, the a p p e l l a n t 's c l a im to the p r o p e r ty c a n n ot r e a s o n a b ly be t r u e, and I am s a t i s f i ed that had the learned trial M a g i s t r a te c o r r e c t ly d i r e c t ed h e r s e lf she would h a ve so f o u n d. Two i n f e r e n c es flow from the a p p e l l a n t 's p o s s e s s i on of the s t o l en p r o p e r t y. As his a l i bi could be r e a s o n a b ly /... true, the inference of housebreaking must be discounted. In all the circumstances, the only reasonable inference is that the appellant received the property, knowing it to be stolen. -8- The appeal against conviction is allowed therefore. The conviction in the Court below is set aside and there is substituted therefor a conviction of receiving stolen goods knowing them to have been stolen. As to sentence, the appellant has been in custody since his arrest in December, 1988, His trial, involving five w i t n e s s e s, having commenced in March 1989, took one year and five months to complete, that is, after some 35 adjournments, in respect of which no reasons whatever are recorded for granting such adjournments. In this respect I would refer the learned trial Magistrate to Judicial Circular No.1 of 1989. I consider that the appellant, a first offender, has more than paid his debt to society. In all the circumstances therefore the appeal against sentence is also allowed. The sentence in the Court below is set aside and there is substituted therefor a sentence of one year's imprisonment, to be served with effect from 17th August, 1990 the date of sentence in the Court below. /... Delivered at Maseru This 29th Day of November, 1991. -9- B. P. CULLINAN CHIEF JUSTICE