Unlawfully Possession of Stolen Properties in Tanzania.

Scenario.

On 5th April 2020 maduhu and his wife sabuda were asleep in their house situated at somanda within Bariadi Town. They were awekened around 1:00 Am by a group of armed bandits who forcefully stormed into their house. 

Upon their forcible entry, the bandits physically assaulted Maduhu and his wife while demanding to be shown where the money was kept. The bandits managed to disposes the named victims of their hard earned cash to the tune of 1,600,000/= and two mobile phones. 

Soon after the bandits had departed from the scene, maduhu and his wife raised an alarmto which their neighbours responded. Thereafter, the incidence was reported to Bariadi police station. 

Two weeks later, Manumbu was found in possession of one of mobile phones (maduhu's phone) taken by bandits at Maduhu's home during incidence.

Questions.

1. What are the possible offences would manumbu be charged with?

2. Identify any defence available for the charge laid against Manumbu as identified in question (1) above.

3. What are the possible offences would the bandits be charged with once they are identified?

4. Would the charge be the same if the incidence would have been committed during the day time?

Answers

WHAT ARE THE POSSIBLE OFFENCES THAT MANUMBU WILL BE CHARGED WITH?

Manumbu charges will be “Unlawfully Possession of Stolen Properties”, provided under section 312 (1) (b) of The Penal Code . The above Section explains in details the elements of the above offence that, being found in possession of goods or properties illegally acquired or without any lawful justification is an offence. Back to our scenario, Manumbu was found in possession of a mobile phone suspected to be stolen from one named Maduhu, there is no any proof to prove that Manumbu was one of the bandits invaded Maduhu’s house and it is difficult to charge other offences apart from Unlawfully Possession of Stolen Properties because there is no proof to prove him being guilty of other offences.

A person charged with this offence is required to prove his innocence by giving full details connected to properties found in his possession and the failure will amount to conviction. Section 312 (1) (b) of The Penal Code  provides that, “Any person who, is found by a police officer in possession of or having control over any property which may, having regard to all the circumstances, be reasonably suspected of having been stolen or otherwise unlawfully acquired, may be charged with being in possession of, or conveying, or having control over, as the case may be, the property which is suspected of having been stolen or otherwise unlawfully acquired and shall, if he fails to satisfy the Court that he did not steal or otherwise unlawfully acquire the property, commits the offence with which he is charged and be liable, on conviction, to imprisonment for a term not exceeding three years”.

In the case of Republic vs Atanath  During the night of 13th May, 2000 bandits broke into the house of one Urban Litiga PW1, in Mbezi, Dar es Salaam. They assaulted him and his wife Olivia Litiga PW2. They also stole cash money in the sum of Shs. 115,000/= and an assortment of household goods such as clothing, a radio, a television set, clocks and watches. The estimated value of the stolen property was Tshs. 1,250,000/=. They were said to be more than 6 in number and after committing the assault and theft they left. The incident was reported to the police.

At about 6.00 a.m. of the morning after the theft a Police Constable, one Kabwewe, PW3, intercepted an Isuzu Trooper motor vehicle at the Uhuru Street round-about in the City of Dar es Salaam. The motor vehicle contained goods which were badly soiled and there were five people in it. He became curious and questioned the five people in connection with the goods. The policeman was not satisfied with their explanations. He took them and the motor vehicle to Msimbazi Police Station where they were detained. Subsequently PW1 Litiga, was called to the police station and he identified the goods from the motor vehicle as the property which had been stolen from him when bandits broke into his house . All five people were charged with unlawful possession of stolen property for only being found in possession of stolen properties, this case portray the same situation to our scenario where Manumbu has been found in possession of stolen goods and the proper offence for him is “Unlawful Possession of Stolen Property”.

IDENTIFY ANY DEFENCE AVAILABLE FOR THE CHARGE LAID AGAINST MANUMBU AS IDENTIFIED IN QUESTION (I) ABOVE.

There is a number of defences which may totally exonerate an accused from charges or lessen the punishment. The following are the defences which may be used when an offence of “Unlawful Possession of Stolen Property” has been committed ;

There was no guilty mind (mens rea) to commit an offence, an accused person may rise a fact that, he did not intended to commit an offence because he bought a cellphone without knowing that it was stolen, so, he is an innocent buyer. For a criminal offence to be established there must be Actus Reus and Mens Rea, lack of one of it may lead to failure to establish offence [See section 10 of Penal Code]. 

Mens Rea refers to criminal intent. The literal translation from Latin is "guilty mind." The plural of mens rea is mentes reae. A mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Staples v. United States  Establishing the mens rea of an offender is usually necessary to prove guilt in a criminal trial. The prosecution typically must prove beyond reasonable doubt that the defendant committed the offence with a culpable state of mind . Justice Holmes famously illustrated the concept of intent when he said “even a dog knows the difference between being stumbled over and being kicked.”

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the “facts that make his conduct fit the definition of the offense.”

Insanity is another defence that may be used in the situation provided by the scenario but there is narrow chance to succeed with this defence. A person to succeed in this defence must prove that his mental health was not stable or affected by a disease during the commission of an offence and he was incapable to understand what he was doing. See section 13 of Penal Code.

WHAT ARE THE POSSIBLE OFFENCES WOULD THE BANDITS BE CHARGED WITH ONCE THEY ARE IDENTIFIED?

Burglary Contrary to section 294 (1) (a) (b) and (2) of Penal Code , this section provides that, “Any person who breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offence therein; or having entered any building, tent or vessel used as a human dwelling with intent to commit an offence therein or having committed an offence in the building, tent or vessel, breaks out of it commits an offence of housebreaking and is liable to imprisonment for fourteen years. If an offence under this section is committed in the night, it is burglary and the offender is liable to imprisonment for twenty years.” 

Bandits committed burglary as provided by above section, bandits broke door and forceful entered human dwelling at night hours with intent to commit offence, their acts constitutes offence of burglary.

Armed Robbery Contrary to section 287A of Penal Code , which provides that, “Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument, or is in company of one or more persons, and at or immediately before or immediately after the time of the stealing uses or threatens to use violence to any person, commits an offence termed “armed robbery””. 

The acts of bandits said in the scenario constitute an offence of Armed Robbery, as per the scenario, bandits were armed, broke the house forcefully, invaded and assaulted victims and took cash 1,600,000 a property of a victim. This is armed robbery because armed forces used to commit an offence.

WOULD THE CHARGE BE SAME IF THE INCIDENCE WOULD HAVE BEEN COMMITTED DURING THE DAY TIME?

House breaking and burglary is the same offence but the different come as to when such offence was committed. Breaking house at day time is an offence termed as “house breaking” while the same offence when committed at night hours termed as “burglary”. I hereby say, House breaking and Burglary is an offence with the same nature, but the different comes as to when such offence was committed.

As per the scenario, if bandits invaded the house during the day, an offence of burglary change to House breaking and Armed Robbery remains the same.

REFERENCE

STATUTES

1. PENAL CODE CAP 16 R:E 2002

2. CRIMINAL PROCEDURE ACT, CAP 20 R:E 2002

CASE LAWS

1. STAPLES V. UNITED STATES 511 US 600 (1994).

2. REPUBLIC V. ATANATH, CRM APPEAL No. 115 of 2002 [2006]

ONLINE SOURCE

1.https://tanzlii.org/tz/judgment/courtappeal-tanzania/2006/75-0

2.https://www.oykhmancriminaldefence.com/faq/best-defences-to-possession-of-stolen-property

3.https://www.law.cornell.edu/wex/mens_rea