Mchome & Anor. Crim. Apps. 135/6-A-71; 2/7/71; Bramble J.

 

Mchome & Anor. Crim. Apps. 135/6-A-71; 2/7/71; Bramble J.

The appellants were convicted of unlawful possession of Moshi c/s 30 of act No. 62 of 1966. The only evidence as to the nature of the alleged Moshi was to the effect that the complainant stated that “the tin contained moshi because of the smell and I am experienced in such cases”. Yet another witness testified that “the tin contained moshi because of the smell”. The crucial issue then was whether or not the prosecution witnesses had the necessary qualification or experience in the detection of moshi.

Held: (1) “There was no proof beyond a reasonable doubt that the liquid in this case was moshi.” (2) “I can do no better than refer to the judgment of Seaton, J. in R. v. Damiano Paulo (1970) H. C. d. p. 40 where it was held: This court has frequently pointed out the necessity of establishing the qualifications or experience of witnesses who testify regarding the nature of substance or liquids alleged to be prohibited ….. in  the absence of any indication the present  case that the police officers were qualified or experienced, then mere description of the pombe as moshi because f its smell, is insufficient to establish the guilt of the appellant beyond reasonable doubt. The experienced, then mere description of the pombe as moshi because of its smell, insufficient to establish the guilt of the appellant beyond reasonable doubt. The experience of a witness must be a finding of fact by the court from evidence adduced. The bald statement of a witness that he is qualified or experienced is not sufficient.” (3) Appeal allowed.