Barthelomeo Daniel v. R., Crim. App. 505-D-69, 1/10/69, Georges C.J

Barthelomeo Daniel v. R., Crim. App. 505-D-69, 1/10/69, Georges C.J 

The appellant was charged with two other persons with burglary c/s 294 (1) of the Penal Code and stealing c/s 265 of the Penal Code. The two persons charged with him were acquitted but he was convicted of receive stolen property c/s 311 (1) of the Penal Code and sentenced to 2 years imprisonment and 24 strokes corporal punishment. On the night of 20^th November, 1968 the house of Saidi Ali, was broken into and various articles (mainly clothing) were stolen. On 24^th November, Said Ali saw the appellant in the market at Morogoro with a shirt which he thought could be his. As a result the appellant was arrested. He

Claimed that the shirt was his and at the trial gave an explanation which the magistrate thought could be true and which he accepted. At the time of his arrest the appellant was in company with the second co-accused. The police later trailed this co-accused, thus discover his house. They carried out a search there and also in the house of the 3^rd co-accused, where they found a number of articles which Saidi Ali identified satisfactorily as his property. In particular the third co-accused on this issue given in his own defence and convicted the appellant or receiving that shirt knowing it to have been stolen. In a room occupied by the second co-accused there was found a box containing items of clothing identified by Saidi Ali as his property. The magistrate held that since the door of that room could not properly be locked it was possible for someone else to have gained access to the room and to have placed the box there. He held, therefore, that the second co-accused had not been shown to have been in constructive possession of the articles, and therefore could not be convicted. The result, therefore, was that the appellant was convicted when none of the property alleged to have been stolen had been found with him or in premises occupied by him. He was convicted on the testimony of a person in whose possession an item of stolen property had been found and whose testimony had not formed part of the case for the prosecution but had been given in his own defence.

            Held (1) “In his judgment the District Magistrate did not refer to the need for corroboration. In argument, learned counsel for the Republic urged that the third co-accused in whose possession the shirt was found was an accomplice and, therefore, the appellant should not have been convicted on his evidence unless it had corroborated. I do not think that the third co-accused could be called an accomplice in this case. If his story is believed, as indeed it was by the District Magistrate, then clearly he would have had taken no part in the matter. He would merely have been the innocent receiver of a gift of clothing from the appellant. It seems to me that he can more properly be described as a person who had an interest of his own to serve, within the definition in R. v. Prater (1960) 44 r. App. Re. p.83. He had been found in possession of stolen property; and unless he gave an acceptable explanation for his possession he could have been convicted of a criminal offence. There was thus a powerful motive for not speaking the truth and consequently his evidence implicating another person should be carefully examined before it is accepted as the basis for convicting that person.” (2) “In the absence of corroboration I do not think it would be safe to accept the evidence of the 3^rd c0-accused in this case as a basis convicting the appellant”. (3) Appeal allowed.