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Makoni v The State (Criminal Appeal No 11/94) [1994] BWCA 19 (14 July 1994)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No 11/94
High Court Criminal Appeal No. F71/93
In the matter of:
RADIPHA ZVENEMAMVE MAKONI
Appellant
and
THE STATE
Respondent
Mr. T. Cherry for the Appellant Mr. C. Gulubane for the State
JUDGMENT
CORAM: AMISSAH J.P.
SCHREINER J.A. LORD BRAND J.A.
SCHREINER J.A.,
The Appellant was charged in the Magistrate's Court with unlawful possession or use of a habit-forming drug without a permit or licence contrary to section 3(1)(b) and 3(3)(b) as read with Statutory Instrument No.35 of 1987 of the Habit forming Drugs Act. The particulars allege that he had in his possession 7894 Mandrax tablets consisting of or containing methaqualone, a habit-forming drug. He was found guilty and sentenced to 10 years imprisonment plus a fine of P15, 000 or 3 years imprisonment in default of payment of the fine. He appealed to the High Court which dismissed the appeal but granted leave to appeal to this Court.
Many of the facts are common cause. The Appellant was arrested at the Kazungula border post between Botswana and Zambia on the 18th September, 1991 on suspicion of contravening the Habit forming Drugs Act. He arrived from the Zambian side of
2 the border post driving a Mercedez Benz motor car. He was alone in the car. The customs official notified the police at the local police station and two policemen arrived. The Appellant was told that the police and the customs officers wished to search the vehicle. The boot was opened and the luggage in it searched but found to contain no drugs. However, two cavities under the floor matting of the boot yielded plastic bags containing tablets some of which were later tested and all found to contain methaqualone.
There were discrepancies in the evidence of the State witnesses as to what was said during the search and as to whether the Appellant pointed out the second hiding place of the tablets or whether they were discovered by the police officer. Cotran J. attempted to explain the most important of these, but eventually came to the conclusion that the Magistrate was wrong in accepting the evidence of pointing out.
However, the important issue as far as the State was concerned was whether the Appellant knew of the presence of the tablets in his motor car. Cotran J. placed considerable weight upon the fact that the explanation as to how the tablets were in the car which he was driving was only forthcoming after the search and after he had been taken to Francistown. He was of the view that, if the explanation concerning the car being out of his possession while it was at the garage where a full service had been done on the previous day, was true and the Appellant was unaware of the presence of the tablets, it would have been given either when the search was being made or, at the latest, on the way to Francistown.
3
If the onus had been upon the State throughout the trial
there could well have been substance in the argument of Mr.
Cherry that the discrepancies and contradictions in the evidence
for the State coupled with the explanation of the Appellant would
justify interference by an appeal tribunal. But the proviso to
Section 11(2) of the Habit forming Drugs Act which deals inter
alia, with Habit-forming Drugs Act in vehicles provides:-
"Any person who is upon or in charge of or who accompanies any vehicle, aircraft or animal, in or u pon which there is any habit-forming drug or drug mentioned in section 2 or every plant or portion of a plant from which any such drug can be extracted, derived, produced or manufactured shall, until the contrary is proved, be deemed for the purposes of this Act to be the possessor of such drug, plant or portion of a plant."
Read by itself the subsection seems to give rise to an irrebuttable presumption, but the provisions of sub-section (3) have to be read with it and the accused can escape liability by setting up a defence, for example, of lack of mens rea because the presence of the drugs in the vehicle was not known or that the accused did not know that what was in the vehicle fell within the ambit of the material mentioned in subsection (2) . "Possess" is defined in section 3(7) as including "keep, store or have in custody or under control or supervision." These acts all necessarily require knowledge of the presence in the present case, of the material upon the vehicle.
The onus of establishing the absence of mens rea lies upon the accused. There is no reason to think that in the case where the burden of proof has been placed upon the accused it requires anything more than proof of the defence upon a balance of probabilities. The subsection does not expressly or impliedly
4 require any higher onus.
In the present case the trial court did not believe the explanation given by the Appellant. Was that wrong? I do not think that this Couurt can find that it was. Using innocent people to tranport habit-forming drugs is something which, no doubt, is not unknown in the underword of drugs, but a plea by the driver of a vehicle caught in possession of drugs that he was unaware that they were there is also not unknown. Each case has to be considered on its peculiar facts bearing in mind the onus of proof.
As I have said, Cotran J. did not rely upon the evidence by Constable Babusi and Sergeant Mogapaesi that the Appellant actually pointed out the place where the second cache of tablets was hidden. This was in conflict with the attitude of the Magistrate who found all three of the State witnesses who were engaged in the search to be honest persons with no axe to grind. It may therefore be that Cotran J. was a little too cautious in his approach to the pointing out.
Be that as it may, if the evidence regarding the pointing out and statement made by the Appellant are not relied upon, the lateness of the explanation give by the Appellant is of great significance and in my view justifies a finding that the onus of establishing that the Appellant was unaware of the presence of the tablets in his car was not discharged. An immediate expresion of genuine surprise and concern that tablets were found in the boot of his car would be expected. The fact that his car had been in the possession of the garage on the previous day would immediately have sprung to his mind and it would have been
5 very unlikely that he should not have ventured the explanation immediately. Instead of this the Appellant says nothing either at the scene of the search or on the journey to Francistown. This is sufficient to warrant a rejection of the explanation as false and, if that is so, there is nothing which goes to discharge the onus which rests upon the Appellant.
I would dismiss the appeal against conviction.
Counsel for the appellant raised a point in regard to
sentence which now falls to be considered. In these cases in the
High Court at Francistown, it has been held that in order that
the minimum penalty provided for in the proviso to section 3(3)
of the Habit-Forming Drugs act should be applicable, the State
should produce incontravertable evidence that more than 100
tablets were possessed by the accused. In the present case a
very substantial number of tablets were found and were sent to
the Police Forensic Laboratoy for analysis. The analyst, a lady
seconded through the United Nations to the laboratory, has a
degree in Organic Chemistry at a Finnish University and was
clearly qualified to undertake the task of analysis. It is
likely that her qualifications entitle her to assess what is a
minimum number of tablets to be analysed in order to provide a
statistically representative sample of the whole. In her
affidavit, however, she states:-
"6. I have analysed tablets from each plastic bag labelled from Al to A8 [these bags were all the bags sent by the police for examination] in order to ascertain whether they contained methaqaulone or any other habit forming drug.
7. I have analysed tablets from each plastic bag labelled from Al to A8 and found them all to contain methaqualone."
She goes on to set out the techiques which were used.
6
Paragraph 9 of her affidavit reads as follows:-
"Calculated according to the average mass of one [1] tablet the number of tablets in the eight [8] transparant plastic bags was found to be equivalent to seven thousand eight hundered and ninety four [7894].
There is no statement in the affidavit as to how many samples of the tablets were analysed nor is it said expressly that this was a representative sample of the whole. This may mean all the tablets sent by the police or all the tablets which were analysed. It is said only that "all" of the sample tablets contained methaqualone. While the affidavit of the analyst is adequate to justify a conviction on the possession of 7894 tablets of methaqualone, the issue of whether the drastic minimum sentence laid down in the proviso to section 3 [3] must be imposed requires further consideration.
The seriousness of all forms of dealing in habit-forming drugs cannot be overlooked by this Court. It results in the break down of individual personalities of person who resort to drugs and is subversive of the structure of society. It causes misery to many and results in huge profits to those responsible for that misery. One of the ways in which it can be controlled is to make life hard for the people who profit from it. This is the reason why heavy minimum punishments are provided for in the Botswana statute.
On the other hand, before a minumum sentence has to be imposed, a Court must be absolutely satisfied that the requirements are present. The State must take all reasonable steps to prove the elements which render the punishment obligatory. One way in which this can be done is to analyse tablets to the number of at least 100 so that there can be no
7 doubt at all that the minimum sentence is to be imposed. Ten years in gaol, even if remission is taken into account, is a substantial part of a man's working life and the requirements of any legislation imposing it must be proved up to the hilt. I consider that in the present case there was no bar to an analysis of more than 100 tablets. I therefore agree with the cases decided in the Francistown High Court that an analysis should be made of the content of sufficient tablets to be able to indentify at least 100 as containing a habit-forming drug. The compulsory minimum sentence should not limit the discretion of the Court in regard to sentences in the present case.
However, in deciding what sentence should be imposed I think that it must be accepted that the Appellant was a conveyor of Mandrax in substantial quantities. Though as a conveyor he might bear a lesser responsibility for the carrying on of drug trafficking than the persons actually responsible for manufacturing or selling or planning and organising the delivery and sale of habit-forming drugs, throughout the world, he must nevertheless, be severely dealt with even though he has no previous convictions. His sentence must also be a warning to others to refrain from meddling in the conveyance of drugs.
In all the circumstances I would suggest a sentence of five years imprisonment dated from the 18th September, 1991 together with a fine of P8 000.00 in default of payment of which he is to serve a further two years imprisonment.
In the result the appeal against conviction fails, but the appeal against sentence succeeds in part. The sentence is set aside and there is substituted a sentence of five years
8 imprisonment commencing from the 18th September, 1991 and a fine of P8 000.00 and, in default of payment of the said fine, a further period of two years.
DELIVERED IN OPEN COURT AT LOBATSE THIS 14TH DAY OF JULY, 1994.
W.H.R. SCHREINER JUDGE OF APPEAL
I agree
A.N.E. AMISSAH
JUDGE PRESIDENT
I agree
LORD D. BRAND JUDGE OF APPEAL
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