Chabala v The People (SCZ Judgment No. 3 of 1976) [1976] ZMSC 4 (27 January 1976)

■ CHABALA v THE PEOPLE (1976) ZR 14 (SC) SUPREME 30 COURT SILUNGWE CJ, GARDNER AD CJ AND HUGHES JS 27th JANUARY 1976 SCZ Judgment No. 3 of 1976 Flynote Criminal law - Theft - Recent possession - Proper inference - Explanation 35 - ■ Whether it must be satisfactory - Whether there is an onus on accused - Duty on court to consider whether it might reasonably be true. Headnote The appellant was convicted of burglary and theft and sentenced to three years' imprisonment with hard labour. The only evidence connecting him with the alleged offence was that shortly after its commission 40 most of the stolen property was found in his house. His explanation for this given on oath in his defence was that the property in question was brought to his house by a friend and that at the time the appellant did not know that it was stolen property. In dealing with his explanation ■ HUGHES JS the 15 magistrate in his judgment stated, "The accused's failure to pinpoint where his ■ friend was simply showed that this friend of the accused did not exist. He was just imaginary." 1976 ZR p15 Held: (i) If a person is in possession of property recently stolen and gives 5 no explanation the proper inference from all the circumstances of the case may be that he was the thief, or broke in to steal and stole, or was a receiver, or even, despite no explanation, cannot be said beyond reasonable doubt to be guilty. (ii) If explanation is given, because guilt is a matter of inference, 10 there cannot be conviction if the explanation might reasonably be true, for then guilt is not the only reasonable inference. It is not correct to say that the accused must give satisfactory explanation. I Dictum of Clayden, F. J., in R v Fanwell [1] cited with approval. 15 (iii) There is no onus on an accused to prove his explanation. (iv) The court is required to consider whether the explanation might reasonably be true. Cases cited: I (1) R v Fanwell (1959) 1 R & N 81. 20 (2) D P P v Nieser (1958) 3 All ER 662. (3) Maseka v The People(1972) ZR 9. Appellant in person. WM Tsotsi, Senior State Advocate, for the respondent. Judgment I Hughes JS: delivered the judgment of the court. 25 The appellant was convicted of burglary and theft and sentenced to three years' imprisonment with hard labour. The only evidence connecting him with the alleged offence was that shortly after its commission most of the stolen property was found in his house. His explanation for this given on oath in his defence was that the property in question was brought to his 30 house by a friend and that at the time the appellant did not know that it was stolen property. In dealing with this explanation in his judgment the learned trial magistrate said: ■ "The accused under the laws of our land is not required to prove anything but when he asserts that a friend of his took the property 35 to his house, and had he taken the police to that friend of his, the accused was not going to be charged with the subject offence. It goes without saying that even in Court mere evidence that a friend of the accused took the property to his house is not sufficient. It is only the accused who knew where ■ I ■ that friend of his was but the 40 Court was also interested to know. The accused's failure to pinpoint where his friend was simply showed that this friend of the accused did not exist. He was just imaginary." ■ 1976 ZR p16 HUGHES JS This was a misdirection of the learned trial magistrate on the application of what is referred to as the doctrine of recent possession. The question of the inferences to be drawn from proof of possession of property recently stolen was considered by the I Federal Supreme Court in R v Fanwell [1], 5 an appeal from the High Court of Northern Rhodesia as it then was. Clayden, F. J., referred to D. P. P v Nieser [2] where at page 669 Diplock, J., said: "The inference appropriate to the particular facts proved is not a presumption of law, it is merely an inference of fact drawn by 10 applying common sense to the proved facts, and there is no 'doctrine' that in a receiving case where recent possession on the part of the accused is proved he is presumed, in the absence of evidence to the contrary, to have known the true facts of the way in which the goods were obtained." 15 ■ Clayden, F. J., then continued at page 84: ■ "That case was a case of receiving. But what was said is of course equally applicable to any other case in which guilt may be inferred n such circumstances. ■ Involved in this statement of the law are matters concerning 20 the general principles applicable to inferences in the criminal law. The inference 'may' be drawn; not must. Such a case must be treated as any other case in which guilt is found by inference. The inference must be the only reasonable inference. And if a person is in possession of property recently stolen and gives no explanation 25 the proper inference from all the circumstances of the case may be that he was the thief, or broke in to steal and stole, or was a receiver, or even, despite no explanation, cannot be said beyond reasonable doubt to be guilty. And if explanation is given, because guilt is a matter of inference, there cannot be conviction if the 30 explanation might reasonable be true, for then guilt is not the only reasonable inference. It is not correct to say, as was said in this case, that the accused must give a satisfactory explanation. Absence of an explanation which can be regarded as reasonably possible is one of the facts on which the inference of guilt may be based. Mere 35 possession of property recently stolen is not enough, for there may always be a reasonable explanation of such possession, and, until it appears that one is not given, the extra fact to dispose of that possibility is not present to found a finding of guilt by inference. ■ ■ ■ And further in the present appeal, despite the absence of 40 explanation in Court, it was necessary that the trial court should pay regard to the fact that there had been explanation to the police at an earlier stage. Guilt, if it was to be inferred, had to be inferred from the possession of, and dealing with, the goods stolen, and the absence of explanation which might reasonably be true. 45 There were explanations given by each at one time. These could not be disregarded, though their value could be affected by the failure to repeat them. But they were not mentioned at all in the reasons for judgment." ■ ■ HUGHES JS This court in Maseka v The People [3] cited that passage with approval when Baron, J. P., as he then was, at page 13 stated: 1976 ZR p17 "This passage requires no elaboration. I would only emphasise one point which is all too frequently not appreciated; even in the absence of any explanation, either at an earlier stage or during the 5 trial, the inference of guilt cannot be drawn unless it is the only reasonable inference to be drawn from all the circumstances." In the appeal before us the learned trial magistrate fell into serious error in suggesting that there was an onus on the appellant to prove his explanation. Furthermore he did not consider, as he was required to do, 10 whether such explanation might reasonably be true. We are unable to say that had he done so he must inevitably have reached the same conclusion as to the appellant's guilt. The appeal is therefore allowed and conviction and sentence are set aside. Appeal 15 allowed ■ ■ I