Bitashika v. R. Crim. App. 647-M-70; 22/7/71; El-Kindy, J.

Bitashika v. R. Crim. App. 647-M-70; 22/7/71; El-Kindy, J.

The appellant was charged with and convicted of stealing c/s 265 of the Penal Code, Cap. 16. The prosecution alleged that the complainant was at Kigoma Railway Station on 11/6/ 70 on route to Tabora. He deposited his basket and bag in his compartment and left. On his return to his compartment, he found that his bag was missing. He discontinued his safari and reported the matter to the Railway Police at Kigoma. On the same day at about 7.30 p. m., while the complainant was still at the Railway Station, the appellant passed him holding a bag similar to his. The complainant then pursued the appellant for sometime and eventually requested the appellant to hand over the bag to him but the appellant refused, asking  the complainant to name the contents of the bag. Te bag was eventually opened in the presence of one Chenge and a pair of trousers and a towel which the complainant identified as his were found. On his part, the appellant claimed that he had the items from a pedlar at his house and that he did not know that it was stolen property. On this evidence, the trial magistrate held that the items in question belonged to the complainant. He held further that:- “The accused’s (appellant’s) defence is that he bought the goods from the traveler and did not know that they were stolen goods. For this reason I find that the accused (appellant) was in possession of stolen property a few hours of its theft and he has given a reasonable explanation as to how he came by the same. In this connection the accused (appellant) stated that the bought the goods from a traveler and no one were present when he bought them. I am unable to accept such a story. I find the accused (appellant) has not given a reasonable explanation.” The main issue on appeal then was whether or not the trial magistrate would have convicted the appellant had he properly directed himself on the issue involved.

            Held: (1) “In my view, at least, three issues were involved and the learned magistrate ought to have directed his mind clearly. There was the question of innocent possession which, if accepted, would have been a good defence to theft and to receiving stolen property. The

Second issue was whether, on the facts and circumstances, the appellant was a thief as charged and similarly on the third issue whether the appellant was a guilty receiver. At the start of the argument (above underlining) it would suggest that the learned magistrate was satisfied that the appellant gave an explanation which could probably be true and therefore he was inclined to acquitting him. But when he turned to rejecting part of the appellant’s explanation, it becomes unclear as to what he meant by the words “he has given a reasonable explanation as to how he came by the same”. The matter is not further clarified by this use of the last phrases “the accused (appellant) has not given a reasonable explanation”. As it was said by the Court of Appeal in the case of Rex v. Verbi (1942) 9 E. A. C. A. p. 42, in order to justify quashing a conviction misdirection as to evidence must be of such a nature and the circumstances of the case must be such that it is reasonably probable that the trial court would not have convicted had there been no misdirection. The case of Rex v. Correa (1938) 5 E. A. C. A.., p. 128 is also relevant. It is clear that the existence of misdirection does not necessarily lead to a quashing of a conviction, as that would depend on the nature of the evidence on record and the circumstances of the case. The test appears to be whether the appellate court on the particular case could still say that the learned magistrate could still come to the same conclusion had he not misdirected himself. The Court of Appeal thought that, in Correa’s case that even a serious misdirection would not necessarily lead to quashing a conviction. In this case, apart from this misdirection I have underlined, the learned trial magistrate also misdirected himself when he said that the appellant was required to give a reasonable explanation. The law does not require him to do anything of this sort in the course of his defence. He is simply required to give an explanation which could probably be reasonably true. Therefore, taking into account these misdirection’s on the evidence together with the facts of this case and the surrounding circumstances – the appellant’s conduct from the time he was seen in possession of the handbag to the time he was seen in possession of the handbag to the time when the handbag was opened in the presence of Chenge is consistent with the conduct of a person who was on guard – it cannot be said that the learned magistrate could have come to the same conclusion.” (2) Appeal allowed.