DIRECTOR OF PUBLIC PROSECUTIONS v JOACHIM KOMBA 1984 TLR 213 (HC)

DIRECTOR OF PUBLIC PROSECUTIONS v JOACHIM KOMBA 1984 TLR 213 (HC)

Court High Court of Tanzania - Mtwara

Judge Msumi J

October 9, 1985

H CRIMINAL APPEAL 91 OF 1983

Flynote

Criminal Law - Recent possession doctrine - Whether applies to cover all penal

offences including murder.

Criminal Law - Recent Possession - whether 8 months is recent enough to justify the

application of the I doctrine where the article in question is a radio cassette.

1984 TLR p214

MSUMI J

-Headnote

The respondent was originally charged with burglary contrary to section 294(1) of the

Penal Code A and stealing contrary to section 265 of the Penal code. He was found

in possession of a radio cassette which had been stolen some eight months earlier

together with some household goods from complainant's house which had been

burgled. The trial court acquitted the accused on the charge of burglary but

convicted him of stealing and subsequently discharged him conditionally under B

section 38(1) of the Penal Code. The Republic was dissatisfied with the decision

hence the present appeal.

Held: (i) The doctrine of recent possession provides that if a person is found in

possession of C recently stolen property and gives no explanation depending on the

circumstances of the case, the court may legitimately infer that he is a thief, a breaker

or a guilty receiver;

(ii) an inference under the doctrine of recent possession may be drawn to

uphold any offence D however penal it may be including the offence of murder;

(iii) there is no general principle for determining the period of time which is

recent enough to justify the application of the doctrine of recent possession;

(iv) in the circumstances of this case, eight months after the disappearance of

the said stolen E radio cassette is too long for the doctrine of recent possession to be

invoked.

(v) when the respondent came into possession of the said radio cassette he

knew that it was a stolen property therefore he is found guilty in the alternative

receiving stolen property contrary to F section 311(1) of the Penal Code.

Case Information

Appeal allowed.

Cases Referred to:

1. R. v Bakari Abdallah (1949) 16 E.A.C.A. 84 G

2. Bulala Mabubu v.R. Cr. App. no. 360 of 1977 H/C Mwanza.

3. Shabani Juma v R. [1953] 20 E.A.C.A. 199

4. William Maziku v.R. [1970] H.C.D. 174

Kaduri for the Republic H

[zJDz]Judgment

Msumi, J.: In the District Court of Songea respondent was charged with burglary

contrary to section 294(1) of the Penal Code and stealing contrary to section 265 of

the Penal Code. After full trial he was acquitted on the first count and convicted on

the second count. And invoking the provisions I of

1984 TLR p215

MSUMI J

A section 38(1) of the Penal Code, the trial magistrate discharged the respondent on

condition that he did not commit any offence of similar nature within the period of

eight months. The Republic is dissatisfied with the said acquittal and conditional

discharge hence the present appeal.

B Prosecution relied on the doctrine of recent possession in proving its case. From

the totality of the testimonies of the five witnesses who compose the prosecution case

the following facts have been sufficiently established. First it is evident that the

house of the complainant one Willigis Haule C (PW1) was burgled on the night of

29th January, 1982. On that day complainant had locked his house and went out for a

short stroll. When he returned he found it broken into and a number of household

items, including one radio cassette, missing. The matter was promptly reported to

police station.

D Another established fact is that sometimes in or about August 1982, the alleged

stolen radio cassette was found in the possession of the respondent. It is on record

that respondent first sold the said radio cassette to Longinus Nchimbi (PW2) for

shs.2,100/=. However, the sale had to be revoked after respondent had failed to

furnish PW2 with the original cash receipt for the radio E cassette in question. The

alleged abortive sale transaction was conducted by Mussa Bakari (PW3) on behalf of

PW2. Then sometimes at the end of August, 1982 respondent approached Daniel

Mbawala (PW4) and offered him the radio cassette in question for shs.2,100/=. But

after some bargain, respondent agreed to sell it for shs.1,700/= out of which PW4 paid

shs.1,600/= remaining the F balance of shs.100/=. This sale was witnessed by

respondent's village mate one Cosmas Nyika (PW5). When respondent was arrested

the radio cassette was with the said buyer (PW4).

G When acquitting the respondent of burglary the learned trial district magistrate

gave quite a startling argument. He said:

.... Other five public witnesses did not say anything about the accused person

for the first count to break the house of the complainant. It is illegal to convict any

accused person from (sic) the suspicion evidence like the i H nstant case ....There is

no any public witness who saw or witnessed the accused person breaking the house of

the complainant on 29.1.82.

I I find it hard to believe that the learned trial magistrate is ignorant of the doctrine

of recent possession. It is clear from the evidence that respondent was found in

possession of part of the property

1984 TLR p216

MSUMI J

stolen from the complainant when his house was burgled. This was about eight

months after the A commission of the said offence. Briefly the doctrine provides

that if a person is found in possession of property recently stolen and gives no

explanation, depending on the circumstances of the case, the court may legitimately

infer that he is a thief, a breaker or a guilty receiver. Such inference may B be

drawn to uphold any offence however penal it may be. Thus in R. v Bakari s/o

Abdallah [1949] 16 EACA 84 it was observed:

that cases often arise which possession by an accused person of property

proved to have been very recently C stolen has been held not only to support a

presumption of burglary or of breaking and entering but of murder as well, and if all

circumstances of a case point to no other reasonable conclusion the presumption can

extend to any change however penal. D

Thus it is wrong, as the learned trial magistrate appears to think, because there was no

witness who claimed to have seen the respondent breaking into the house of the

complainant it necessarily mean that the first count of burglary could not be upheld.

There is ample evidence which was quite rightly E believed by learned trial

magistrate that respondent was found in possession of the stolen radio cassette about

eight months after the commission of the burglary in question. Respondent did not

offer any explanation, let alone a reasonable explanation, how he came to possess the

same. Instead he just denied to have anything to do with the said radio cassette. It

would appear that the learned F trial magistrate was not impressed by this denial

hence this explains his convicting him of stealing the radio cassette in question. Now

if the learned trial magistrate was convinced, and quite justifiably so, that respondent

stole the said radio cassette, and since the said radio cassette was G stolen after the

house of the complainant was burgled, it is logically and legally imperative that

respondent should be held the burglar of the said house. Respondent could not be

held responsible for the theft of the said radio cassette and on the same breath clear

him of the burglary which occasioned theft in question. H

Perhaps respondent could have been acquitted of both offences and in substitute

convict him of receiving stolen property contrary to section 311(1) of the Penal Code.

The question is whether the period of about eight months which elapsed from the

commission of the said burglary and stealing I to the time when respondent was

found in possession of the radio cassette in question is recent enough

1984 TLR p217

MSUMI J

A to justify an inference that respondent is the actual burglar and thief. There is no

general rule in determining this question. My learned brother Katiti, J was audibly

clear when he remarked, in Bulale s/o Mabubu v R. Cr. App. No. 360 of 1977,

Mwanza. Registry:

B ... But as to what time is near enough to be recent, no acceptable general rule

can be given, for the period within which the presumption can operate will vary

according to the nature of the properly stolen, for even two months for articles that

can easily change hands were not sufficiently recent to raise a strong C presumption

against the accused in Shabani s/o Juma v.R. (1953) 20 EACA 199, and yet three

weeks were sufficiently recent in the case of possession of stolen radio in the case of

William Maziku v R. [1970] HCD 174.

D I am of the opinion that taking into account the nature of the alleged stolen

property - a radio cassette - I think eight months are too long for the doctrine to be

invoked. It is quite possible that during this period the said radio cassette might have

changed hands. Hence the only irresistible E inference is that respondent is a guilty

receiver. When he came into possession of the said radio cassette respondent knew

that it was a stolen property. He could not have been an innocent receiver. Hence

accordingly respondent is acquitted on both counts but in the alternative he is found

guilty and convicted of receiving stolen property contrary to section 311(1) of the

Penal Code. F Because of this holding I find it not necessary to say anything on

propriety of the trial magistrate's order of discharging the respondent conditionally

under section 38(1) of the Penal Code. In conclusion this appeal is allowed.

G The trial court's findings are quashed and in substitute accused is found guilty and

convicted of receiving stolen property contrary to section 311(1) of the Penal Code.

H Appeal allowed.

1984 TLR p218

A