Damiani Grevas v. R., Crim. App. 79-M-70; 28/4/70; Kimicha, J.

Damiani Grevas v. R., Crim. App. 79-M-70; 28/4/70; Kimicha, J.

The accused was convicted of unlawful possession of moshi c/s 30. Act No. 62 of 1966. he was sentenced to 9 months imprisonment. The facts are that on 24^th November, 1969 at about 10.30 p.m. the accused was found with ¼ bottle of moshi. The evidence produced in the court showed that the accused was dead drunk of moshi ad was in danger of death. Prosecution witnesses asserted that the accused was drunk because he smelt of moshi, and that there were two empty bottles on the table and a glass contained moshi. The moshi and the empty bottles were given to a messenger by the one of the witnesses with instructions to send them to Police the following day. The Police Captain concerned received the empty bottles and the glass with moshi at 2 p.m. the following day. The witnesses for defence stated that on the material day the accused was sick and as a result was sent to hospital. They could not say whether the accused was drunk or sick. The doctor who attended the accused did not say that the accused was drunk, he stated that the accused was suffering from a fever of unknown origin, headache and he was depressed. The accused was admitted in the hospital for a few days. The trial Magistrate found him guilty. He appealed on the following grounds: (1) There was no evidence that the bottles of moshi found on the table of appellant were in the conscious possession of the appellant; (2) There was no evidence that the bottles belonged to the appellant;

(3) There was no sufficient evidence that the smell was conclusively of moshi or that the appellant had consumed the contents in the bottles which were found in his house; (4) There was no medical evidence as to the drunkenness of the appellant; (5) The learned trial magistrate did not give reasons for rejecting the defence case and this is fatal in law; (6) The sentence is excessive. During hearing of the appeal the Counsel for defence argued that the police officer seized the bottles from a messenger, and that the messenger was not called to give evidence. He argued that the evidence of the police officer was hearsay. He maintained that hearsay evidence was inadmissible and the exhibits were not identified. Besides, there was no medical evidence whether the fever and headache might be the result of drunkness. The Counsel for prosecution did not quarrel with the grounds of appeal raised by the appellants Counsel. He conceded that there was a lot of inadmissible evidence. In his view the magistrate based the conviction on erroneous grounds and he therefore did not support the conviction.

            Held: (1) “The appellant was charged with unlawful possession of moshi and not with drinking it. Therefore, the only exhibit which was material in this case was the ¼ glass of moshi which was found in the appellant’s house. I have also no hesitation in agreeing with the defence counsel that this exhibit was not properly produced in court by Corporal Ismail because the messenger from whom he received the exhibits did not give evidence in court to the effect that the exhibit was the one which was handed over to him by the ward executive officer. This defect was not cured by the ward executive officer because although he gave evidence in court he was not asked to identify the exhibit. So, so far as legal technicalities are concerned, Corporal Ismail’s evidence was hearsay and inadmissible. This was the only exhibit, as far as the charge is concerned, which incriminated the appellant. So up to this stage of considering the case, and taking the evidence as a whole common sense rules that the appellant was undoubtedly guilty as charged but legal technicalities are equally vehement and demand the appellant’s immediate acquittal and release from custody.”  (2) “I am of the view that such a situation can be resolved by the application of section 32(2) of the Magistrates Courts Act that substantial justice to be done without undue regard to technicalities in considering the application of this section the evidence has to be considered as a whole and then decide whether the undue application of technicalities would result in injustice being done or not. This means that it is also important to decide hat the justice of this particular case is.” (3) “I also find that the substantial justice of the case in this particular case is that the appellant did possess the moshi as charged and that to acquit the appellant on the ground that the glass of moshi was improperly admitted in evidence would be acting contrary to the provisions of section 32(2) of the Magistrates Court Act. This section if very important in our present system of our courts. It takes into account that justice has to be administered justly to all citizens and that the majority of the magistrates are laymen. The section has been created in order to balance the situation. It is also serving another important purpose and that is it fosters good understanding between the citizens and the court because it enable them to understand the law under which they are administered. It is important for the masses to have some understanding of the functioning of the forces of law and order. They must feel that they are there for their benefit and not mere abstract conceptions imposed on hem. An acquittal, for example, in such a clear case of guilt as the one under consideration because of undue regard to technicalities would have resulted in a very bad understating of the courts by those members of the public conversant of the facts of the case. They would have wondered whether the courts were for them or for invisible human beings” (4) “For the above reasons the appeal is dismissed in its entirety”.