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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

CASE NO: HC-MD-CRI-APP-CAL-2017/00018

In the matter between:

JOHN DAVID TOTOAPPELLANT

v

THE STATE RESPONDENT

Neutral citation:Toto v S (HC-MD-CRI-APP-CAL-2017/00018) [2018] NAHCMD 71 (27 March 2018)

Coram:SIBOLEKA J and SALIONGA AJ

Heard on:09 March 2018

Delivered on:27 March 2018

Flynote:Criminal law: Appeal against conviction and sentence – dealing in prohibited dependence producing substances – appellant found conveying what he knew was cannabis weighing 75 kilograms valued at N$ 225 000. The presumption of dealing in the substance in contravention of Section 10(1)(a) and (e) of Act 41 of 1971 correctly applied – sentence also befits the personal circumstances of the appellant; the crime itself; – and the interest of society – the appeal is dismissed.

Summary:The appellant, in full view of the police loaded three black white striped bags of cannabis in the boot of his car in which he was driving alone. He was arrested, he knew it was cannabis. In his presence the substance weighed 75 kilograms, street valued at N$ 225 000.

Held: The appeal against conviction and sentence is dismissed.

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ORDER

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The appeal against conviction and sentence is dismissed.

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APPEAL JUDGMENT

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SIBOLEKA J (SALIONGA AJ concurring):

[1]The appellant who pleaded not guilty to all counts was after trial, convicted in the Regional Court Windhoek, on a charge of contravening section 2(a) Dealing in Prohibited Dependence Producing Substances Act 41 of 1971. He was sentenced to nine (9) years imprisonment of which three (3) years were suspended for five years on the usual condition of good behavior. He now appeals against both conviction and sentence.

[2]The grounds of appeal are as follows:

‘Ad conviction

  1. The learned Magistrate erred in fact and/or law by convicting the appellant of the charge of dealing in a prohibited substance when the state has failed to prove the weight of the said substance beyond reasonable doubt: The prosecution has in fact proved the charge against the accused (appellant) beyond reasonable doubt.
  1. Alternatively, the learned Magistrate erred in fact and/or law by convicting the appellant of the charge of dealing in a prohibited substance, whilst the appellant has proffered a plausible explanation that negated the presumption that he was dealing; and while the state failed to prove beyond reasonable doubt that the accused was dealing in the said substance: It is clear from the appellant’s own evidence under oath that he knew that he was conveying cannabis, thereby abling the trial Court to invoke the presumption in Section 10(1)(a) and (e) of Act 41 of 1971. (dealing in prohibited dependence producing substances).
  1. The learned Magistrate erred in fact and/or law by failing to grant an application on behalf of the appellant to recall first state witness: The trial Court’s refusal to recall the first prosecution witness was justified.
  1. The Magistrate erred in fact and/or law by failing to draw adverse inference from the apparent lapses in police in investigations: The police operation that led to the arrest of the appellant was excellent, well coordinated hence the cannabis of a very large quantity and value was confiscated.
  1. The learned Magistrate erred in fact and/or law by failing to wholly suspend the appellant’s prison and sentence, or to giving the appellant an option of a fine’. This argument would have assisted the appellant if he took the trial Court in his confidence and pleaded guilty, which he declined to do despite the fact that he did not have a case from the word go, nothing at all.

[3]The facts of the matter are that the police, acting on a tip off, observed a certain house where bags of cannabis were poised to be loaded on a vehicle. After some time a brown Volkswagen Passat Station wagon come to a standstill at the house under police observation. There was only a driver and no other person. The driver, now the appellant before court, was seen and observed loading three black and white striped bags in the boot of the vehicle alone and thereafter he drove away. He was intercepted, arrested and directed to drive his own car to the Police Station which he did. At the station and in his presence the police found a total of 300 brown parcels of cannabis, 100 parcels in each of the three black white striped bags. The bags were taken to Trans Namib where, in the presence of the appellant the brown parcels weighed 75 kilograms valued at two hundred and twenty five thousand Namibian Dollars (N$ 225 000).

[4]The main bone of contention in this appeal is that the Magistrate should not have convicted the appellant on ‘dealing’ in prohibited dependence producing substances because the prosecution failed to prove the required weight of the substance 115 grams beyond reasonable doubt.

[5]The appellant’s counsel argued in the main, that the 115 grams of cannabis that a suspect should be found with to trigger the operation of the presumption contained in section 10(1)(a) and (e) was not properly achieved and therefore not proved beyond reasonable doubt. According to the appellant’s counsel, that being the case the appellant was only supposed to be convicted on possession of cannabis and not dealing therein as it has been the case.

[6]The appellant was charged as follows in the court below:

COUNT 1: DEALING IN A PROHIBITED DEPENDENCE PRODUCING SUBSTANCE

That the accused is/are guilty of contravening section 2(a) read with sections 1, 2(i) and/or section 2(ii), 8, 10, 14 and Part I of the Schedule of Act 41 of 1971 as amended.

In that upon or about the 29th day of October 2006 and at or near Windhoek in the Regional Division of Namibia the said accused did wrongfully and unlawfully deal in a prohibited dependence producing drug, or a plant from which such a drug can be manufactured, to wit 75 kg of cannabis valued at N$ 225 000.

1ST ALTERNATIVE COUNT TO COUNT 1: POSSESSION OF A PROHIBITED DEPENDENCE PRODUCING SUBSTANCE (in respect of accused one)

That the accused is/are guilty of contravening section 2(b) read with sections 1, 2(i) and/or 2(iv), 7, 8, 10, 14 and Part I of the Schedule of Act 41 of 1971 as amended.

In that upon or about the 29th day of October 2006 and at or near Windhoek in the Regional Division of Namibia, the said accused did wrongfully and unlawfully have in his possession or use a prohibited dependence-producing drug or a plant from which such a drug can be manufactured to wit 75 kg of cannabis valued at N$ 225 000.

[7]The appellant’s counsel went further to argue that there was no proof whether the Trans Namib Scale used to weigh the cannabis was properly functional or not. According to him the proof was only supposed to be secured if a certificate of calibration was used as it happens in Road Traffic driving related offences such as driving with a high level of alcohol in blood. It was argued that in the absence of the above certificate the proper functioning of the Trans Namib Scale used to weigh the cannabis on this matter cannot be viewed as trustworthy at all. This counsel relied on the presumptions in Sections 10(1)(a) and (e) of the Act 41 of 1941 which reads as follows:

‘10.(1) (a) If in any prosecution for an offence under section 2 it is proved that

the accused was found in possession of –

(i) dagga exceeding 115 grams in mass;

(ii) any prohibited dependence-producing drugs,

It shall be presumed that the accused dealt in such dagga or drugs,

unless the contrary is proved.

(b) …

(c) …

(d) …

(e) If in any prosecution for an offence under section 2(a) or (c) or section 3(a), it is proved that the accused was upon or in charge of or that he accompanied any vehicle, vessel or animal on or in which any dependence-producing drug, or any plant from which such drug could be manufactured, was found, it shall be presumed that the accused dealt in such drug or plant, unless the contrary is proved.’

[8]The Prosecution evidence which is not in dispute on this matter states that the appellant had three black white striped bags containing 300 parcels of cannabis in the boot of the car he was driving.

[9]From the evidence, at Trans Namib in the presence of the appellant, D/Cnst. Mberiuana first weighed the three empty bags and recorded the weight. He then put the 300 parcels of cannabis on top and he subtracted the weight of the three empty bags from that of the combined weight. That is how he arrived at 75 kilograms.

[10]The submission of the Respondent’s counsel is that when regard is had to the number of three hundred parcels of cannabis, the appellant had in the boot of his vehicle and the weight of 75 kilograms reflected on the scale when it was weighed, it then credibly follows that the cannabis found on the appellant was indeed in excess of 115 grams as the appellant had personally witnessed. According to this counsel that was the basis of the satisfaction by the trial Court finding that proof beyond reasonable doubt has been established resulting in the handing down of a conviction on dealing in prohibited dependence producing substances. This counsel further submitted that the said trial Court’s finding was materially credible and it cannot be faulted by this Appeal Court at all.

[11]A reading of the presumption in section 10(1)(a) and (e) of Act 41 of 1971 supra does not even slightly come nearer to any of the requirements related to the issuance of a certificate of calibration to prove beyond reasonable doubt that the Trans Namib scale was functional and in good working order at the time the cannabis was weighed. It is my considered view that if the Legislature required the issuance of a calibration certificate in cases related to possession/dealing in prohibited dependence producing drugs, it would have explicitly stated that. (my own underlining)

[12]Looking at the large quantity of three hundred (300) parcels of cannabis the appellant loaded on his car alone in view of the police and which he was conveying in the vehicle he was driving alone, which cannabis he testified belonged to Nxonxo, it is in my considered view that it is virtually impossible(a) that a possibility exists that such a huge quantity of cannabis could have been of a lessor weight than the prescribed presumptive threshold of 115 grams, for the reason that the Trans Namib Scale used was not calibrated, and; (b) That a possibility exists that the appellant could have been incorrectly convicted on dealing in prohibited dependence producing substances.

[13]From the above it is clear that the element of intention to possess cannabis has been proved beyond reasonable doubt because the appellant was aware of the fact that he was conveying cannabis. It flows from there that the trial Court correctly invoked the presumption in Section 10(1)(a) and (e) of the prohibited dependence producing substances Act 41 of 1971.

[14]As regards sentence, the trial Court, in my view has appropriately took into account the appellant’s personal circumstances and in particular the fact that he was 68 years old. Also considered was the seriousness of the crime which includes the quantity and street value of the cannabis, as well as the interests of society. It is all this process that enabled the trial Court to arrive at the conclusion of suspending three years from the nine years it has imposed on the appellant.

[15]Given the manner in which the offence was observed and monitored at close range by the police, resulting in the appellant’s arrest, a guilty plea would have been more beneficial to the appellant.

[16]In view of the above observations the appeal against sentence cannot succeed.

[17]In the result I make the following order:

The appeal against conviction and sentence is dismissed.

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A M SIBOLEKA

Judge

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J T SALIONGA

Acting Judge

APPEARANCES:

APPELLANT: Mr Muharukua

Swartbooi & Muharukua Attorneys, Windhoek

RESPONDENT:Mr Olivier

Of Office of the Prosecutor-General, Windhoek