S v Nyamunda (687 of 2022) [2022] ZWHHC 687 (28 July 2022)

1 HH 687-22 CRB-CD 4198/21 THE STATE versus PETROS NYAMUNDA HIGH COURT OF ZIMBABWE MUNGWARI & MAKOMO JJ HARARE 28 JULY 2022 Criminal review MUNGWARI J: This record of proceedings came before me on automatic review in terms of section 57 of the Magistrates Court Act [Chapter 7.10]. The accused, Petros Nyamunda, appeared before a magistrate sitting at Mbare on a charge of contravening s 131(1)(a) of the Criminal law Codification and reform Act [Chapter 9:23] (Code) i.e. unlawful entry into premises or alternatively contravening section 125 of the Code i.e. being found in possession of property reasonably believed to have been stolen. He pleaded not guilty to both the main and the alternative charges. After a full trial he was found not guilty and was acquitted of the main charge. He was however convicted of and sentenced on the alternative charge. I have serious reservations with the propriety of the conviction on that alternative charge. Brief facts The state alleged that on 12 July 2022 the accused unlawfully entered into complainant’s hardware shop and stole property listed in the charge. The property had been on display in complainant’s shop. On 25 July 2022 the complainant privately conducted investigations and located his property displayed in accused’s shop. He identified his property by his shop’s price tags which were still affixed to the stolen items. The complainant reported the matter to the police who then interviewed the accused with a view to ascertaining where he had obtained the items. The accused explained that the property had been sold to him by Brighton Phiri (Brighton). When efforts to locate Brighton proved futile the police turned around and arrested the accused. From the above allegations arose the two charges that I have alluded to. In a well-reasoned judgment the trial magistrate analyzed all the evidence that was placed before her. She outlined the complainant’s evidence which was largely undisputed by the accused. It was to the effect that his hardware shop had been broken into. Some of his stock HH 687-22 CRB-CD 4198/21 was then stolen. After conducting his own investigations he recovered the property in the accused person’s shop. He identified his property through his shop’s price tags which still appeared on the items. The witness advised the court, that right from the onset the accused had told him that he had bought the property from one Brighton who lived in Kuwadzana. Brighton had come to him in a Toyota Fun Cargo vehicle with the consignment. He had sold the property to him. He believed accused’s explanation but because accused had been found in possession of the stolen property and Brighton was nowhere to be found he told the court that his hands were tied. The second state witness was Lawrence Makusha(Lawrence). He was the investigating officer in the matter. His testimony was that he had received a report of unlawful entry from the complainant who at the same time gave him leads on where he had seen his stolen property. Lawrence had subsequently assigned some other police person to recover the property and the property had indeed been recovered from accused person’s shop. He also confirmed that accused had cooperated fully and informed him that he had bought the goods from Brighton. As already indicated efforts to locate Brighton had ultimately proved futile. The state then closed its case. In his defense the accused maintained his story that he had bought the property from Brighton. He advised the court that it was not his first time to transact with Brighton. As recent as January 2022 he had also bought some brick force from him. Brighton had told him that the property which forms the subject of this charge, had actually been given to him by his employer in lieu of the dues which the employer had failed to pay. Brighton had also told him that the employer owned a shop and explained the price tags which the property bore. As a result, the accused had not hesitated to purchase the property from Brighton. He also did not see the need to remove the price tags as he believed the seller’s explanation. Initially Brighton bargained for $800 USD for the hardware stock but accused negotiated that down to $450 USD. A deal was struck and the accused took delivery of the goods. He proceeded to display them for sale in his shop complete with their original price tags. He was surprised to see the police come to his shop a few days later and allege unlawful entry and theft on his part. In light of this evidence the trial magistrate inevitably arrived at the finding that the accused was not guilty of the offence of unlawful entry into premises. There was simply no evidence to prove that. The court reasoned that if he had, he would not have been so dumb as to display the stolen items in his shop with the complainant’s price tags still affixed to them. HH 687-22 CRB-CD 4198/21 His explanation for possession of the property was plausible. As a result, the state’s evidence on the main charge fell short of the standard required to sustain a conviction. As I indicated earlier that reasoning cannot be faltered. Unfortunately, in a sudden turn of events and right at the tail end of the judgment, the trial magistrate concluded that the accused must have suspected the property to have been stolen. Her primary consideration in arriving at that finding was that Brighton had agreed to reduce the price of the property by a wide margin. It fell from $800 USD to $450 USD. The court’s view was that a reasonable person would have suspected or at the very least ought to have interrogated the origins of the property. For this reason alone she convicted the accused on the alternative charge. The settled position is that the superior court will not lightly interfere with the decision of a lower court where the judicial officer will have exercised judicial discretion in assessing the evidence adduced and coming to a particular decision. Such exercise of discretion will only be interfered with in very circumscribed circumstances. The lower court’s decision can only be interfered with where the circumstances meet the test laid down in Barros and Another v Chimponda 1999 (1) ZLR 58(S) where at 62G- 63A the Supreme Court stated that: “These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.” It is my view that the proposition applies with equal force in review proceedings. See also (Nyahondo v Hokonya & Ors 1997(2) ZLR 457). Now, what the trial court failed to do was to assess the evidence before it against the essential elements of the offence it convicted the accused of so that it could be sure that the conviction was safe. In s125 of the Code, the offence of being found in possession of property reasonably suspected to have been stolen is couched as follows: HH 687-22 CRB-CD 4198/21 “125 Possessing property reasonably suspected of being stolen If any person (a)is or has been in possession of property capable of being stolen and the circumstances of his or her possession are such as to give rise ,either at the time of his or her possession or at any time thereafter, to a reasonable suspicion that when he or she came into possession of the property it was stolen; and (b) is unable at any time to give a satisfactory explanation for his or her possession of the property; the person shall be guilty of possessing property reasonably suspected of being stolen ,and liable to….” For any conviction to stand the following essential elements require proof: a. Possession of property capable of being stolen b. Circumstances of possession such as give rise at the time of his possession or any time thereafter that the property could have been stolen c. A reasonable suspicion of theft is formulated d. Failure by accused to render a satisfactory explanation for possessing the property I should hasten to say that this stands as one of the most difficult offences to prove against an accused in our criminal law. It requires evidence of blatant failure by an accused to explain the source of the property in his possession which property must be capable of being stolen. Where he/she has an innocent explanation, the chances of a conviction dwindle. Those chances are even further reduced where the arresting detail does not advise the court why he formulated the opinion that the accused must have stolen the property. In S v Gaviyaya 2008 (2) ZLR 159 (H) the court held: “However the elements of circumstances which give rise to the suspicion that the property was stolen must be as perceived by and considered by the person calling upon him or her to account. Thus if it is a police officer, there must be something that the police officer saw and considered in the accused’s possession or manner of possession for him to suspect that the property was stolen. Such is within that officer’s knowledge and the accused cannot answer for him. Equally the element of reasonable suspicion is within the officer to explain how it came about. These are elements that are not within the accused’s knowledge and so any admission of these elements by the accused would not be of much value. The court cannot on its own formulate that opinion. It must base its finding on the explanation of the circumstances which gave rise to that suspicion by the investigating officer or some other qualified person. S125 (a) and (b) are joined by the conjunctive ‘and’. What that means is that the requirements in both subsections must be fulfilled for a conviction to be sustained. In other words the matter cannot simply end after finding that there were reasonable HH 687-22 CRB-CD 4198/21 grounds to found a suspicion that the property in accused’s possession was stolen. In addition the accused must have failed to give a satisfactory explanation of his possession of the property. In the case at hand, it is common cause that the accused was in possession of property capable of being stolen. The circumstance which was created by the court on its own volition and is alleged to have given rise to the suspicion that the property was stolen relates to the margin between Brighton’s initial selling price and the price for which he ultimately sold the items. The court said it was too wide. What the magistrate appeared not to have realized however is that the actual price of each of the items was not stated to the court for it to arrive at the finding that $450 was a ridiculously low amount for the accused to buy the type and quality of goods in question for. Even if it were to be accepted that the price was unreasonably low, the matter could not end there. The accused gave an explanation which in my view was very plausible. The items had been sold to him by Brighton who in turn had been given them by his employer as compensation for what he was owed. There is no evidence of how much Brighton was owed by his employer such that it is impossible to tell whether by selling the items at $450 he made a fortune. The law does not say the accused must give an explanation which the court must find to be true. It simply requires him/her to give a satisfactory explanation. The Oxford English Dictionary, 2019 defines the word satisfactory to mean: ‘Fulfilling expectations or needs; acceptable, though not outstanding or perfect; tolerable; good enough.’ The accused’s story was simple. The explanation he gave cannot by any account be discounted as unsatisfactory given the permissive nature of the word satisfactory. Brighton was not a stranger to the accused. They had previously transacted with each other. The accused’s evidence was that as recent as January 2022, he had purchased some hardware stock from Brighton which turned out to have been lawfully acquired. It is from such a relationship that the accused must have seen Brighton and believed his story. It was in my view reasonable. It is for these reasons that judicial officers are urged to be very circumspect when returning guilty verdicts for a charge under s125 of the Code. In fact it is the reason why it is even undesirable to record a plea of guilty by an accused who is charged with this offence. In this case I need to reemphasize that the police officer Lawrence Mukusha ought to have come to court and narrated what he saw and considered in the accused’s possession or manner of possession for him to suspect that the property was stolen. This would have been within his knowledge. Equally, the element of reasonable suspicion would have been within the officer’s knowledge and it was for him to explain how he came to harbor that suspicion. HH 687-22 CRB-CD 4198/21 Instead the investigating officer was simply alerted of the matter by the complainant. He already knew that the property in accused’s possession had been stolen. He did not suspect it of having been stolen. All he sought from accused was an explanation as to the source of his acquisition of the hardware goods. He was given a satisfactory explanation. He only arrested him when he could not locate the alleged seller of the goods, Brighton. Lawrence Mukusha’s evidence did not allude to him having formulated a suspicion that accused was in possession of property that could have been stolen. For that reason the matter ought to have ended there. It is not the accused who suspects himself. It is also not the court which must suspect the accused. For the above reasons, the conviction is not safe. It calls for interference. In the premises, IT IS ORDERED THAT: 1. The conviction of the accused and the and sentence imposed on him on the alternative charge be and is hereby set aside 2. The accused is found not guilty and is acquitted MUNGWARI J…………. MAKOMO J……………..