Letsie v R (CRI/A 67 of 88) [1989] LSCA 61 (31 May 1989)

C R I / A / 6 7 / 88 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er o f: 'MATHAABE LETSIE v R EX Before the Honourable the Chief Justice Mr. Justice B. P. Cullinan on the 31st d ay of May. 1989 J U D G M E NT The accused was convicted by the Subordinate Court of the Second Class for the Maseru District of dealing in a plant from which a prohibited m e d i c i ne can be m a n u f a c t u r e d, namely 124 plants of d a g g a, and was sentenced to a fine of M100 or six months imprisonment in d e f a u lt of payment t h e r e o f, "suspended for 1 year conditionally"; In passing, I o b s e r ve that the p r o v i s i o ns of section of the Criminal Procedure and Evidence Act 1 9 8 1, and in p a r t i c u l ar s u b s e c t i o ns (3) and (4) t h e r e o f, do not embrace the suspension of a period of imprisonment in default of payment of a fine. The Court may only suspend the o p e r a t i on of a sentence of certain date and duration. Imprisonment in default of payment of a fine is provisional and u n c e r t a i n: /... - 2 - it may never take effect if the fine is paid. The Court cannot suspend the operation of a sentence which may never come into operation. In any e v e n t, police found the dagga growing in the front garden of the house occupied by the accused and her hospitalized husband., The dagga was growing prominently in the front rather than the back g a r d e n, in full view of the p u b l ic on the roadway, in front of the house. The evidence established that the police called twice at the accused's home that day. The first time she was not present. The police discovered the dagga on their second v i s it The accused testified that she suspected her brother- in-law of growing the dagga. The evidence indicated that she had a g a r d n e r: a reasonable inference is that he grew it. The learned trial Magistrate relied upon the presumptions in section 30(1) (a) and (b) of the Dangerous Medicines Act, The first of those deals with the possession of dagga exceeding 115 grams in mass w h i c h, as I see it, did not apply. In any event " p o s s e s s i o n s" connotes not merely physical p o s s e s s i o n, but also the knowledge of the nature of that possessed. Similarly the presumption under section 3 0 ( 1) (b) concerns the "owner, o c c u p i e r, m a n a g er or person in charge of cultivated land". While the accused could be regarded as part-owner or p a r t - o c c u p i er of the land, with her debilitated h u s b a n d, the presumption nonetheless depends on the fact that the accused "was aware or could reasonably have been expected to have been a w a r e" of the e x i s t e n ce of the dagga plants on the land. Here - 3 - the accused was aware of the e x i s t e n ce of the p l a n t s, but a g a i n, as 1 see it, such a w a r e n e s s, for the p r e s u m p t i on to o p e r a t e, must include k n o w l e d ge of the n a t u re of the p l a nt That fact must be proved beyond r e a s o n a b le doubt b e f o re the p r e s u m p t i on can o p e r a t e. In this respect the learned trial m a g i s t r a te in a ruling that there was a case to a n s w e r, said that " In the light of the f a ct that a c c u s e d 's husband is i n c a p a c i t a t e d, it would be assumed that any m a j or d e c i s i o ns rest upon the accused in their h o m e, and it is the feeling of this court that accused has been properly charged and she has a case to a n s w e r. " Again in her reasoned j u d g m e nt the learned trial M a g i s t r a te observed that " .... it is unlikely that accused could have let this plant which do not even flower in the real sense of the w o r d, and they lack f r a g r a n c e, to grow in her front yard and to such m a s s i ve extent". I do not see that such a s s u m p t i o ns w e re established beyond r e a s o n a b le doubt, I cannot then see how the s t a t u t o ry p r e s u m p t i o ns would o p e r a t e, shifting the onus on to the accused., I am not satisfied that had the learned trial M a g i s t r a te d i r e c t ed herself correctly in the m a t t er that she would inevitably have convicted the accused. It would be u n s a fe to allow the conviction to stand. The conviction and A,, - 4 - sentence in the court below are set aside and the accused is acquitted. Delivered at Maseru this 31st day of May 1989. (B. P. CULLINAN) CHIEF JUSTICE