1
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
EX TEMPOREJUDGMENT
In the matter between: Case no: CA6/2015
ARSEN MAYAWOULAFIRST APPELLANT
ELVIS LUBAKISECOND APPELLANT
and
THE STATERESPONDENT
Neutral citation:Mayawoulav The State(CA6/2015) [2015] NAHCMD 97 (09March2015)
Coram:GEIER Jet UEITELE J
Heard:09March 2015
Delivered:09March 2015
Released:22April 2015
Flynote:Criminal law - the concept of ‘possession’, when used in a penal statute, comprises two elements, a physical element (corpus) and a mental element (mens rea)
Summary: Criminal law — Drug offences — Cocaine — Dealing in in contravention of Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971 — Appellants driving vehicle in which cocaine hidden in spare tyre — On appeal — Appellants' version that they had not known that cocaine had been concealed in vehicle, was held reasonably possible on the facts proved in the case — Mens rea accordingly not proved — Court on appeal accordingly setting aside conviction of trial court of dealing in cocaine.
ORDER
- The appeal succeeds.
- The conviction and sentence imposed on the appellants on 20 May 2014 is hereby set aside.
JUDGMENT
GEIERJ (UEITELE J concurring):
[1]It is seldom that the prosecution and defence agree on appeal that a conviction should be set aside.
[2]This is such a case.
[3]The appellants were convicted on one count of dealing in cocaine, contravening Section 2(c) read with s 1(2)(i) and or 2(iii) Act 10 of 14 and part 2 of the schedule of Act 41 of 1971, as amended, in the Windhoek Magistrate’s Court, on the 25th of April 2014.
[4]They were convicted together with accused no. 3, who is not a party to this appeal.
[5]All three accused were sentenced on the 28th of May 2014 to seven years imprisonment, of which four years were suspended, for a period of five years, on the usual conditions.
[6]The two appellants, now before the court, then filed a Notice of Appeal against conviction and sentence. They have since abandoned the appeal against sentence.
[7]Although the conviction was one of dealing in cocaine, the appeal turns on the question of possession.
[8]If we understand the argument of both counsel correctly, such conviction cannot stand, if the State has failed to prove that the appellants knew that they were transporting cocaine, which was hidden in a spare wheel. This submission is of course linked to the further submission that the court a quo misdirected itself in this regard when it rejected the defences of the appellants on this score as not being reasonably possibly true and that all three accused persons had acted in concert when transporting the drugs in question.
[9]It has already been mentioned that the two appellants had originally been charged together with accused no. 3 in the court a quo. In this regard it should be mentioned further that, although accused no. 3 had pleaded guilty to the charge such plea was not accepted by the State. Ultimately, and despite accused no. 3 admitting to having committed the offence, thereby at the same exonerating the appellants, the court a quo nevertheless found all the accused persons guilty.
[10]Incidentally it should also be noted that the 3rdaccused never appealed his conviction and the resultant sentence which thus continues to stand.
[11]As mentioned before the central issue in this appeal turns on the issue of possession. In this regard reliance is placed on the case of S v Paulo &Another[1]in which Justice Parker considered and determined how the element of possession was to be interpreted and determined in relation to the Abuse of Dependance- Producing Substances and Rehabilitation Center’s Act, Act 41 of 1971. At paragraphs [11] and [12] of that judgment the Learned Judge dealt with this aspect as follows:
‘[11] It is not in dispute that the authorities converge on the proposition that as a general rule the notion of ‘possession’, when used in a penal statute, comprises two elements, a physical element (corpus) and a mental element (animus possidendi) (DPP v Brooks [1974] 2 All E.R. 840 (House of Lords; Warner v Metropolitan Police Commissioner (1968) 52 Cr. App. R. 373 (House of Lords); R v Lewis (G.E.L.) (1988) 87 Cr. App. R.270 (Court of Appeal)); Lockyer v Gibb [1967] 2 Q.B 243 (Court of Appeal); S v Adams 1986 (4) SA 882 (A)). It is worth noting that the English cases which came before the highest Court and the next highest Court in the criminal justice system in England are among the landmark cases in which ‘possession’ in a similar penal statute like Namibia’s statute was interpreted and applied. Corpus consists of either direct physical control of the article in question or mediate control through another person. Thus, ‘possession’ should be interpreted ‘to comprehend corpus plus the animus to control, either for the possessor’s own purpose or benefit, or on behalf of another (this latter alternative being equivalent to what is often termed “custody” or detentio) or as meaning “witting physical detention, custody or control” (S v Adams 1986 (4) SA 882 (A) at 891A-C, per Corbett JA)’.
[12] I accept Corbett JA’s dictum as a correct statement of law and so I adopt it; not least because the dictum accords with the statutory definition of ‘possession’ in s. 1 of No.41 of 1971. All this also means that the alleged possessor must at least be aware that he or she has the article in question in his or her physical control (S v Adams supra at 891G). Thus, a person does not have possession of something which has been put into that person’s pocket or house without that person’s knowledge. In Lockyer v Gibb supra where the Court of Appeal was seized with interpreting ‘possession’ in a similar English penal statute, Lord Parker CJ gave the illustration of something being slipped into a person’s basket. While the person was unaware of what had happened there would be no possession. Thus, one may exclude from the ‘possession’ intended by Act 41 of 1971 the physical control of articles which have been ‘planted’ on a person without his or her knowledge.’
[12]The Namibian Supreme Court then confirmed these basic underlying principles inS v Paulo and Another (Attorney-General as Amicus Curiae)[2]. That judgment also reaffirmed the basic criminal law principle that means rea remains an essential ingredient of the offence created by s 2(1)(a) of the said Act.[3]
[13]State counsel submitted in written heads of argument that:
‘{22}On the issue of transporting drugs, there is only one version from Accused no. 3 who testified how he transported the drugs from Otjiwarongo and the fact that Appellants were not aware of the presence of the drugs in the black golf. His version is supported by the Appellants who testified that while in Otjiwarongo, Accused no. 3 left them at the filling station and went to the location. In essence, there is no version from the State on the transportation of drugs and in absence of any version from the State the Court can only draw inference within the bounds of legal principle on inferential reasoning as outlined above in paragraph 13.’
{23}It is submitted that, with a one sided version from Accused no. 3 and the Appellants on the transportation of drugs there is no basis to find that the Appellants’ version and that of Accused no. 3 was not reasonably possibly true or a reasonable possibility that it may be substantiallytrue even if the Court a quo didn’t believe them.’
[14]Counsel on behalf of the appellants pointed out that:
‘{36}The trial Court found that the State failed to prove that 1st Appellant was aware and indeed had the intention to possess the drugs that was found in the tyre of the vehicle he was driving. Despite such finding the trial Court proceeded to conclude that the Appellants dealt in drugs.
{38}It is submitted that even the presumption relied on do not assist the trial Court in its finding that the Appellants dealt in drugs in question as there is abundant evidence proving that the Appellants had no knowledge of the presence of the drugs in the spare wheel. Accused 3 who knew about the presence of the drugs in the spare wheel exonerated the Appellants in his plea and in his testimony during the trial.There was further no evidence to the contrary. The inference sought to be drawn by the trial Court leading to its conclusion that the Appellants and accused 3 dealt in drugs is not consistent with the proven facts and surely not the only reasonable inference to be drawn from the established facts.
{39}It is further submitted that the defence evidence was not adequatelyanalysed to determine if it was reasonably possibly true, therefore its dismissal was a misdirection by the trial Court.’
[15]During oral argument Mr Sibeya who appeared on behalf of the appellants submitted that the appeal court was entitled to interfere with the court a quo’s finding because of its various material misdirections. Inter alia he drove home the point that there was absolutely no evidence which indicated that the 2ndappellant had any knowledge of the fact that he was conveyed in a vehicle which contained cocaine hidden inside the spare wheel. There was thus no evidence which proved the requisite mens rea for the commission of the crime of which the 2ndappellant was convicted.
[16]As far as the 1stappellant was concerned he submitted that it was relevant to take into account that the drugs in question could not be detected with the naked eye as they were discovered only after the tyre was screened by x-ray. This aspect corroborated the 1stappellant’s version as well as the version of accused no. 3 relating to the unawareness of the hidden drugs.
[17]After certain additional misdirections, made by the court a quo, had been dealt with, such as, for example, those made in regard to the spare tyre, which was apparently collected from outside Namibia’s borders, and, in respect of which no evidence had been placed before the court, and in regard to the finding that accused 3 wanted to shoulder all the blame, in respect of which it was pointed out, that this was inconsistent with the evidence of the state witness Basson, to whom accused no. 3, had, on two earlier occasions,already indicated that he wanted to plead guilty and exonerate his co-accused- the point was also made, with reference to the explanation, adduced by accused no. 1, in respect of the conduct of the accused persons relating to the defective petrol pump, that the additional finding, that the version, of the 1stappellant, could not possibly be true, was clearly incorrectas theevidence exposed that this was not so and that this was certainly also not the only inference that could be drawn from the evidence adduced.
[18]As the appellants’ evidence was to the effect that they both were unaware of the fact that the spare- tyre in question contained drugs and that they were transporting cocaine their versions could thus reasonably possibly be true. The appeal court would thus, because of these misdirections, be free to make its own finding on the merits and accordingly set aside the convictions on appeal.
[19]Mr Nyambe conceded correctly in our view that it was difficult to support the conviction and the decision made by the court a quo considering further that the mental element in regard to the underlying question of possession had not been proved. Counsel is to be commended for his forthrighteousness in this regard, and, as I have said before, his courage to correctly make this concession.
[20]Given the above, it does not take much to conclude further that the conviction of the appellants cannot continue to stand given the failure of the State to prove the requisite mens rea in regard to the offence with which the appellants were charged.
[21]In the result the appeal has to succeed and the conviction and sentence imposed on appellants on 20 May 2014 as hereby set aside.
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H GEIER
Judge
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SFI UEITELE
Judge
APPEARANCES
APPELLANTS:MrOSibeya
Sibeya & Partners Legal Practitioners,Windhoek
RESPONDENT:MrRS Nyambe
Office of the Prosecutor-General, Windhoek
[1]Case CC10/2009 delivered on 31 May 2010 and reported on the Saflii web-site at
[2]2013 (2) NR 366 (SC) at [28} – [29]
[3]S v Paulo & Ano(Attorney-General as Amicus Curiae) op cit at [29]