Salangeta v People [1969] ZMCA 6 (17 December 1969)

SALANGETA v THE PEOPLE (1969) ZR 1 (CA) COURT APPEAL BLAGDEN CJ, DOYLE JA, EVANS J 17th DECEMBER 1968 Flynote [1] Criminal law - Theft - Recent possession doctrine - Limited to inferences 5 of fact. Headnote The doctrine of "recent possession" is merely a convenient shorthand for the inferences of fact which, in the absence of a satisfactory explanation by the accused, may be drawn as a matter of common sense from the fact that the accused had in his possession 10 property which shortly before had been unlawfully obtained; the doctrine does not shift the burden of proof or explanation to the accused. Cases cited: (1) Fanwell v R 1959 (1) R & N 81. 15 (2) D P P v Nieser [1959] 1 QB 254; [1958] 3 All ER 662; [1958] 3 WLR 757. Dumbutshena, Legal Aid Counsel, for the appellant Chaila, State Advocate, for the People. Judgment Bladgen CJ: delivered the judgment of the court. 20 The appellant appeals against the judgment of the High Court which dismissed his appeal against conviction for burglary and theft and sentence of thirty - four months' imprisonment with hard labour passed by the Subordinate Court of the First Class at Kitwe. The evidence against the appellant consisted of the discovery, in 25 his possession, of items of property stolen in the course of the burglary which had occurred some three days previously. In his defence the appellant gave evidence on oath and put forward an alibi, namely that at the time of the burglary at Kitwe he was with his cousin at Chililabombwe. Secondly, his defence was that the property found on him was 30 his own. He claimed that he bought one item three years ago from the O. K. Bazaars and obtained another by exchange with his brother - in - law. It was obvious from the nature of these defences that there were witnesses who could have supported the appellant's story and that there should have been no difficulty in tracing them. The magistrate took great 35 pains to ensure that the appellant could have these witnesses if he wanted them but he declined to call them. The learned trial magistrate rejected the appellant's evidence - that is his explanation of how he came into possession - and in the course of his judgment he said this: "Once this possession of stolen property by 40 the accused was established it was now upon the accused to give an innocent explanation to the satisfaction of the court." That was a misdirection. 1969 ZR p2 BLAGDEN CJ There is never any obligation upon an accused person to give any explanation to the trial court whether to its satisfaction or otherwise. The magistrate, however, did correctly direct himself, at the start of his judgment, that it was for the prosecution to prove beyond reasonable 5 doubt all the essential ingredients of the offence charged and thus satisfy the court of the accused's guilt. In another passage in his judgment the learned trial magistrate said: "The presumption of fact here is that he stole them in the absence of satisfactory explanation. No satisfactory explanation has been rendered 10 by the accused." This passage is not aptly expressed either. [1] The correct approach to these matters will be found in the case of Fanwell v R [1]. At pages 83 and 84 of this report Clayden FJ, said: "The proper approach of a Court to the consideration of guilt in a case of this sort has recently been stated in England in the clearest way. In Director of 15 Public Prosecutions v Nieser [2] at 766, Diplock, J, in giving the judgment of the Court, said: 'It may, we think, be misleading to speak of the "doctrine" of recent possession in cases of receiving. It is a convenient way of referring compendiously to the inferences of fact which, in the absence of any satisfactory explanation by the accused, may be drawn 20 as a matter of common sense from other facts, including, in particular, the fact that the accused has in his possession property which it is proved had been unlawfully obtained shortly before he was found to be in possession of it . . . But the inference appropriate to the particular facts proved is not a presumption of law; it is merely an inference of fact 25 drawn by applying common sense to the proved facts, and there is no "doctrine" that in a receiving case where a recent possession on the part of an 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." Nieser's case was, of course, a case of receiving and as 30 Clayden pointed out in Fanwell what was said in Nieser's case was equally applicable in any other case in which guilt may be inferred in the same circumstances. In this instant appeal the learned trial magistrate correctly directed himself on the burden of proof and where it lay. His judgment contained 35 certain misdirections. In our view these misdirections resulted in no miscarriage of justice whatever. In regard to them we have no hesitation in applying the proviso contained in section 14(1) of the Court of Appeal for Zambia Ordinance. This appeal is accordingly dismissed. Appeal dismissed 40