IN
THE HIGH COURT OF SWAZILAND
Cr.
Case No. 207/94
In
the matter between:
THE
KING
vs
MHLUSHWA
BOY MOTSA
CORAM: Hull,
C.J.
FOR
THE CROWN Mr. Kilukumi
FOR
THE DEFENDANT Mr. Flynn and Mr.
Dunseith
Judgment
(24/3/95)
The
accused is the owner of a towing business. His home is in Manzini. On
the property he also has a caravan, which serves as his office. He
also used another caravan as an office in the field, as it were. His
method of operation was to have it parked with his fleet of tow
trucks at a convenient point by the roadside, ready to respond to
calls for assistance. Communications between the two offices and the
tow trucks themselves were by way of radio telephone.
It
is not suggested that, in itself, there was anything wrong at all in
this. From time to time, until the incident that has led to these
charges, the police themselves engaged the accused to tow vehicles,
including those suspected of having been stolen. At first, they were
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sometimes
towed to the Manzini police station but later it become the practice
to take them to Fortune's panel beating firm in Manzini.
On
12th July 1994, in a combined operation, members of the Royal
Swaziland and South African Police Forces entered and searched the
homestead of the accused. At the time he was away,
There
were in the yard of the homestead, which was fenced, a large number
of vehicles, and parts of vehicles such as engines. It has not been
suggested the accused made any attempt generally to conceal the
things that were in fact in his yard. It appears that the things that
were there were lying about openly.
The
police officers participating in the operation testified that they
made written notes of the details of the vehicles and the parts that
they found. They used the information for further inquiries. On 13th
July, they removed a number of engines to Lobamba police station. On
the following day they removed a number of vehicles to the same
station. (These included some shells of vehicles and it is the
Crown's case that they also included some chassis). These things were
all kept there in the police vehicle compound. This is patrolled at
night time. During the day, it is not patrolled; the police rely
instead on their ability to keep watch on it from the adjacent police
station.
Later
in August and September, during the course of their subsequent
operation, the police interviewed the accused on three occasions. The
records of those interviews are in Siswati and the English
translations have been produced here - the English translations as
Exhibits 15, 14 and 13 respectively. In August, they also interviewed
a man called Sikhumbuzo Ndzinisa whom the accused employed as a
driver. The record of that interview in Siswati, and the English
translation, have been produced as Exhibits 17 and 18.
On
4th October 1994, the police arrested the accused and Ndzinisa. They
were charged thereafter with the nine counts set out in this
indictment as it was originally presented.
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The
counts had to do to three motor vehicles.
The
first three counts (count 1, what I will call count 1A, and count 2,
the second of which was in the alternative to the first) relate to a
1982 Toyota Hilux that was stolen from a trucking company near
Warburton in South Africa on 5th September 1991. It is not in dispute
that the black chassis which has been produced at this trial as
Exhibit 1 is the chassis of this stolen vehicle.
These
three counts were preferred only against the accused, Mr. Motsa. The
first is that he stole the 1982 Toyota Hilux from the trucking
company in South Africa and then brought it into Swaziland at some
time on or before 14th July 1994. The second, in the alternative, is
that he received it at Manzini between 5th September 1991 and 14th
July 1994, knowing it to have been stolen.
The
third charge is that in Swaziland between 5th September 1991 and 14th
July 1994, he altered and/or tampered with the Toyota in order to
disguise or conceal its identification.
The
next three charges (counts 3, what I will call 3A and 4) related to a
1984 Toyota Corolla 1.8 Sprinter motor car stolen from a Mr. J. Nyoni
at Westonaria in South Africa on 12th June 1993. These charges were
also preferred against the accused Motsa alone. They were of the same
kind as the first group of charges relating to the 1982 Toyota Hilux.
In other words, it was alleged first that the accused had stolen the
Corolla at Westonaria and brought it into Swaziland; secondly (in the
alternative) that in Swaziland he received it at some time between
the date of its theft and 14th July 1994, knowing it to have been
stolen; and in any event that in Swaziland during that period he
altered and or/tampered with it to conceal or disguise its
identification. It was the Crown's case that Exhibit 4, which is the
body shell of a beige Toyota Corolla with some loose body panels
inside it, was the remnant shell of Mr. Nyoni's stolen car. Exhibit 4
was admittedly recovered from the homestead of the accused during the
police operation.
The
last three charges (counts 5, what I will call 5A end 6), in the same
way, related to a 1990 Toyota Hilux 4x4 LDV vehicle, registered
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number
NZY 629 T, which was stolen from a Mr. Leon Forssman at Nelspruit on
14th June 1994. These charges were preferred against both the accused
and Mr. Ndzinisa. In other words it was alleged that they had stolen
that vehicle from Mr. Forssman in South Africa and then brought it
into Swaziland; in the alternative that they had received it in
Swaziland between the date of its theft and 14th July, knowing it to
have been stolen; and again, in any event, that they had between
these dates altered or tampered with it within Swaziland in order to
conceal or disguise its identity. It is the Crown's case that the red
Toyota Hilux vehicle shown in the photograph that has been produced
at the trial as Exhibit 5 is Mr. Forssman's stolen vehicle. This is
not admitted. It is however common ground that the red Hilux shown in
the photograph was in fact in Mr. Motsa's possession at his homestead
on 14th July 1994, (and I do not understand it to be in dispute at
all that it was also there at the time of the police operation on
12th July 1994.)
The
red Hilux shown in the photograph has not been produced as an exhibit
in this trial. It is common ground that it was released by the police
to an agent of the South African insurance company that had
indemnified Mr. Forssman for the loss of his vehicle. It was so
released pursuant to an order obtained from this court in November
1994. The order was made on the application of the agent. Notice of
the application was given to the Crown, which consented to the order.
In giving its consent, it was stated for the Crown that to the
knowledge of the Commissioner of Police no other person claimed or
had an interest in the vehicle. At the time when this was given, the
Commissioner of Police was aware of two things. One was that the
vehicle in the photograph Exhibit 5, the red Hilux, was a potential
exhibit in this trial. The other was that on 8th August 1994, Motsa
acting through his attorneys had formally demanded the return of the
vehicles and vehicle parts removed from his homestead during the
police operation. A copy of the letter of demand was produced at this
trial as Defence Exhibit 7. Motsa was not given any notice of the
application to the High Court for the release of the red Hilux shown
in the photograph Exhibit 5.
In
presenting the Crown's case, Mr. Kilukumi sought to lead evidence
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to
prove that other stolen vehicles were found at Motsa's homestead
during the police operation.
He
sought to do so on two bases, firstly on the provisions of section
262 of the Criminal Procedure and Evidence Act 1938 and secondly, at
common law, on the similar fact principle. I refused to admit such
evidence on either ground. As far as the common law principle was
concerned, I was satisfied that this category of evidence does not
fall within the similar fact principle. As far as the applicability,
of section 262 of the Criminal Procedure and Evidence Act was
concerned, I considered firstly that it was not open to the Crown to
rely on that provision in a case where, as here, the indictment
contains not merely charges of receiving but also charges of theft. I
nave to add - I must add - that Mr. Kilukumi took the view (although
as it happened Mr. Flynn had a different view) that I had a
discretion in the matter. To the extent that I had a discretion, I
would certainly have exercised it in favour of the accused.
When
the Crown closed its case, Mr. Flynn applied under section 174(4) of
the Criminal Procedure and Evidence Act 1938 to have all of the
counts against each of the two accused dismissed on the grounds that
there was no evidence on which a court, acting carefully, could
reasonably convict either of them of any charge.
Each
of the charges was brought under the Theft of Motor Vehicles Act
1991. The charges of theft and receiving were brought under section
3(1) of that Act. The charges of tampering were brought under section
9.
The
evidentiary presumptions in section 4 of the Act, of which the Crown
has the benefit, apply to the charges under section 3(1).
For
the reasons that I gave at the time, I allowed the application in
respect of the charges against Motsa relating to the 1984 Toyota
Corolla 1.8 Sprinter (counts 3, 3A and 4), as well as the charge
against him (count 6) of tampering with the Toyota Hilux 4 x 4 to
conceal its identity; and the charges against Mr. Ndzinisa relating
to the Toyota Hilux 4 x 4 (Counts 5, 5A and 6). The Crown did not in
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fact
oppose the application of either of the accused in respect of count
6.
It
may be helpful if in summary I reiterate my reasons briefly. I was
satisfied that there was no evidence on which a reasonable man,
acting carefully, could have concluded that the beige Toyota Corolla
shell and accompanying parts, which were Exhibit 4, had been
identified as the Toyota Corolla Sprinter stolen from Mr. Nyoni in
Westonaria. As far as Mr. Ndzinisa was concerned, the only evidence
implicating him in the charges relating to the Toyota Hilux 4 x 4
belonging to Mr. Forssman is that of the questions by the police to
him and his answers, set out in Exhibits 17 and 18. Having regard to
his answers in the whole context in which they were given, I was
satisfied that no reasonable man, acting carefully, could properly
have convicted him of any of the charges on the strength of those
answers, notwithstanding the presumptions in section 4 of the Act. On
his own answers, taken as a whole, I saw no reason at all then
suppose that he was not probably telling the truth. His answers were
exculpatory. Moreover the Crown, as dominus litus, conceded rightly
in my view that neither of the accused had a case to answer in
respect of count 6. There is no evidence that the red Hilux shown in
the photograph Exhibit 5 (which is allegedly Mr. Forssman's stolen
vehicle) has been altered or tampered with in any way to conceal its
identity.
I
think too that in the interests of clarity I should also at this
point repeat, in short summary, the remaining charges which Motsa
faces, before dealing with them.
The
first set of charges (Counts 1, 1A and 2) relate to the 1982 Toyota
Hilux stolen from the Warburton area on 5th September 1991. It is not
in dispute that the black chassis which has been produced as Exhibit
1 comes from that vehicle. It is disputed that Mr. Motsa was
knowingly in possession of the black chassis, and it is also in
dispute that he stole the vehicle (or the chassis); or received
either, knowing it to be stolen; or tampered with the vehicle to hide
its identity. The Crown alleges that he actually stole the vehicle
and brought it into Swaziland: in the alternative that after it was
stolen he received it in Swaziland, knowing it to have been
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stolen;
and that in any event that in Swaziland he tampered with or altered
the vehicle to mask its identity.
The
second set of charges relate to the Toyota Hilux 4x4 stolen from Mr.
Forssman at Nelspruit on 14th June 1994. The Crown alleges that the
red Hilux shown in the photograph Exhibit 5 is that stolen vehicle.
It alleges that Mr. Motsa actually stole it, and brought it into
Swaziland; or, in the alternative, that he received it in Swaziland
knowing it to have been stolen. It is not in dispute that the red
Hilux shown in the photograph was recovered from Motsa's possession
during the police operation. It is in dispute that it has been proved
to be Mr. Forssman's stolen Hilux. It is in any case in dispute that
Motsa stole the red Hilux shown in Exhibit 5, or received it knowing
it to have been stolen.
Count
2 - the allegation that Motsa tampered with the 1982 Hilux to conceal
its identity - can be disposed of at once. The evidentiary
presumptions in section 4 of the Theft of Motor Vehicles Act 1991 on
which the Crown relies do not apply to charges of tampering under
section 9 of the Act. There is no evidence at all that the black
chassis itself (Exhibit 1) has been tampered with. Its critical
identifying feature, i.e. its embossed chassis number, has not been
interfered with at all. There is nothing else to indicate that any
attempt has been made to disguise the chassis itself. This particular
charge can only depend on an inference that Motsa once had the
original vehicle or at least something more than the chassis, and
that he then dismantled it to reduce it to the chassis to conceal the
identification of the vehicle. In the absence of any statutory
presumptions to assist the prosecution, there is clearly no basis in
evidence at all on which such an inference could properly be drawn.
Accordingly I find the accused not guilty on Count 2 and discharge
him on that count.
The
determination of the other charges does involve a consideration of
the statutory presumptions.
The
basic principle in a criminal trial is that the prosecution bears the
onus of proving the charge and of doing so beyond reasonable doubt.
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Section
4(1)(a) of the Theft of Motor Vehicles Act 1991 provides in its
relevant parts as follows:
"Unless
the contrary is proved by him, a person shall be presumed to have
committed an offence under section, and on conviction punished
accordingly, if -
"(a)
he is found in possession of a motor vehicle which is reasonably
suspected to be stolen ..."
Section
4(2) provides:
"In
any proceeding in which the accused is charged with receiving a motor
vehicle knowing it to be stolen, the onus shall be on the accused to
prove that at the time he received the vehicle he had no reasonable
grounds to believe that the vehicle was stolen."
In
order to avail itself of the presumptions in section 4(1)(a), the
Crown must in my view prove beyond reasonable doubt -
(i) that
Motsa was in possession of the vehicle (or part of the vehicle) to
which the charge relates; and
(ii) that
it is reasonably suspected of having been stolen.
Where
the Crown fulfills those conditions, then in my view the legal onus
of proof shifts to Motsa to show, on a balance of probabilities, that
he did not steal it or receive it knowing it to be stolen.
In
relation to the two receiving charges, I understand Mr. Kilukumi to
concede that the presumption in section 4(2) is subsumed by the
presumptions in section 4(1)(a) but in any event I construe section
4(2) to mean that if the Crown proves beyond reasonable doubt that
Motsa was in possession of a vehicle that was in fact stolen, then
the legal onus of proof rests on him to prove on a balance of
probabilities that he had no reasonable grounds for believing that it
was stolen.
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In
respect of every charge to which the presumptions may be applicable,
before either of them can be invoked, the Crown must in my view prove
beyond reasonable doubt not only that the vehicle or the vehicle part
was in his possession, but also that he knew that it was in his
possession - by which I mean that he was aware that he had the thing
himself in his possession.
Before
dealing with the evidence that relates specifically to the charges, I
want to refer to three considerations that Mr. Flynn raised.
As
I have mentioned, it is not in dispute that Motsa operated a towing
business in the course of which he towed vehicles at the request of
the police themselves. These sometimes included stolen vehicles.
There is evidence that he continued to provide this service at least
until a fairly short time before the police operation. Mr. Flynn
mentioned, in particular, evidence that he had once at the request of
the police towed a vehicle from Hlatikulu Police Station to the
Oshoek border. I understood Mr. Flynn to be inviting me to infer that
in all likelihood he was towing a stolen vehicle at the request of
the Police - in other words that the Royal Swaziland Police had
recovered and were returning to South Africa - and I certainly
understood Mr. Flynn to be making the point that Motsa himself was
not told of the status of that vehicle by the police. That inference
may not be unreasonable, and indeed the Crown did not really seek to
dispute it, but in any event, it is a matter of public notoriety that
motor theft is a very prevalent crime in the region. That is of
course one reason for the stringent provisions of the legislation
governing such offences which reflects a serious public concern.
The
relevance as Mr. Flynn's submission in this respect, as I understand
it, is that in carrying on legitimately the business of a tow
service, and of doing so admittedly at times for the police
themselves. Motsa may very well from time to time have handled
vehicles or parts of vehicles that had been stolen, not only because
he may have been instructed by the police to do so for legitimate
purposes but, more particularly, in circumstances in which he may
well have been unware that they had been stolen.
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In
some jurisdictions, legislation places strict duties on persons who
trade in circumstances in which their business activities may serve
as convenient "fronts" (if I can use that expression) for
unlawful dealings. One example that comes readily to mind is the kind
of legislation that requires second-hand dealers and pawn-brokers to
keep full records of the persons with whom they have transactions.
Section 6 of the Theft of Motor Vehicles Act 1991 itself imposes
certain duties on car dealers, garage managers, and persons who
repair or service motor vehicles. It seems to me that one might
usefully include in that - I do not say this in any way in respect of
Mr. Motsa, but as a general comment - persons who provide tow
services.
However
it was not suggested at all at this hearing that Motsa had been in
breach of any statutory obligations, and on these specific
allegations of crimes of theft, receiving and tampering, I am of the
view that Mr. Flynn's submissions have force, as a general
consideration to be kept in mind.
He
also identified aspects of the Crown's evidence which were in his
submission clearly unsatisfactory. These were as follows:
(a) It
was clearly the evidence for the Crown that in the course of the
police operation, the police photographed vehicles and parts of
vehicles that were found on Motsa's premises, and that the negatives
(including the black and white prints that were taken from them)
were, definitively, those of the photographs taken.
(b) It
was also to be inferred from Superintendent Lukhele's evidence that
the photographs taken were then put on dockets for investigation.
(c) The
photograph that is Exhibit 21 - a photograph of a black chassis - was
produced at the trial as a photograph taken, as I understood it, at
Mr. Motsa's premises, of the black chassis which is Exhibit 1. On
comparison of the photograph with the black chassis, it is however
clear that it is not. In particular, although there are also other
differences, there is a small hole on the side of the chassis frame
in the photograph
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that
is simply not present on the black chassis which is Exhibit 1.
(d) As
I have mentioned already, the police released to the agent of Mr.
Forssman's insurer the red Hilux shown in Exhibit 5, which is
allegedly his stolen 1990 Hilux 4x4. They did so pursuant to a court
order to which the Crown consented, on the basis expressly that the
Commissioner of Police knew of no one else who claimed an interest in
the vehicle; and notwithstanding that they were aware that Motsa had
given formal notice of such a claim; and notwithstanding too that it
was a potential exhibit in this trial. In consequence of the release
of the vehicle, Mr. Flynn submits, the court and the defence were put
in the position of being unable to test the evidence of the Crown
witnesses who said that they identified the vehicle at Lobamba, by
comparing their testimony with the exhibit itself. Mr. Flynn's
submissions in this regard were I think, all directed towards the
charges relating to the 1990 Toyota Hilux 4x4 essentially. It was the
evidence for the defence that a log book which related to the way in
which the red Hilux in photograph Exhibit 5 had came into Motsa's
possession - in other words legitimately - had been handed over to
893 Detective John Dlamini but had not been produced by the
prosecution in evidence. It had been put to the officer that he had
been given it. He did deny it. The point of Mr. Flynn's submission
was that given the other unsatisfactory features of the case that he
referred to, there was a reason for looking critically at the
officer's denial. He was, of course, also saying that the defence
witnesses' version should be believed.
A
third consideration to which Mr. Flynn adverted, which can in my view
be properly regarded as a comment of a general nature because it does
affect both charges, is that the Crown have failed to show that two
of the defence witnesses were not credible or not independent. It
goes further than that. He was saying that it was never really put to
them at all that they were not being candid, or that either of them
had any kinds of motive to serve. He was referring to a Mr. Xulu, who
had been in charge of panel beating at Fortunes in Manzini, and to a
Mr. Themba Qwabe.
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It
is not in dispute that Motsa's towing service had been in the
practice of leaving at Fortune's vehicles that had been towed there
by the service at the request of the police. Mr. Xulu corroborated
the accounts of Motsa and Ndzinisa that the vehicles had been left
outside Fortune's yard, pending payment of the towing and receiving
fees and collection by their owners. He also confirmed that vehicles
or parts of vehicles, including chassis and pieces of chassis had
accumulated there when owners had failed to claim them. He also gave
evidence that in the panel-beating process, chassis sometimes had to
be separated from vehicles, and sometimes cut into pieces for
repairs. He confirms too, that a time had come when Motsa's drivers
had removed unclaimed vehicles, parts and scrap to Motsa's own
homestead. As Motsa and Mr. Ndzinisa had also said, he explained that
this was because the Manzini Town Council had complained about the
debris accumulating outside Fortune's yard.
In
his closing submissions, Mr. Kilukumi for the Crown submitted that
the only evidence that the Council had complained was hearsay.
Nevertheless, Mr. Xulu himself was saying that he observed at times
the debris being taken away by Motsa's drivers, and I agree with Mr.
Flynn's submission (as I have already indicated) that Mr. Xulu was
not shown to have been a witness who was not credible or not
independent.
Mr.
Qwabe, a television presenter, gave evidence that of his own
initiative, he had gone to Motsa's homestead with his own supervisor
and asked Motsa. to sell to his supervisor parts of the red Hilux
which the supervisor wanted for his own Hilux as replacement parts.
There is an issue as to the admissibility of Mr. Qwabe's evidence. I
agree with Mr. Flynn, however, that Mr. Qwabe was not shown in any
way to be an unreliable witness as to what he did have to say.
Turning
now to counts 1 and 1A, relating to the 1982 Toyota Hilux, the first
question is whether the Crown has proved beyond reasonable doubt that
this was found by the police in the possession of Motsa.
In
certain respects the evidence that the black chassis (Exhibit 1) was
recovered from the homestead is in my view less than satisfactory. No
photograph has been produced here, showing that it was there. The
photograph which is Exhibit 21 is not a photograph of that chassis
and
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it
has not been explained; and Mr. Motsa himself has not admitted at all
that it was on his property.
In
his evidence in chief, Sergeant Van Rooyen of the Oshoek Border Post
of the South African Police said that in the operation on 12th July,
there had been many chassis in Motsa's yard. He said that he had
noted down the numbers at the time, but that he could not give them.
Then, still in his evidence in chief, he testified that he had gone
afterwards with Mr. J.J. Geldanhuys, (a senior official in the
trucking company from whom the 1982 Hilux had been stolen) to Lobamba
to inspect the black chassis and that there (i.e. at Lobamba), he had
noted its number. He produced his file and what he identified as his
contemporaneous note, and from that then gave the chassis number.
In
cross-examination, he first said that he did not have with him a note
of the chassis number made on 12th July. He went on to say that he
did not have the notes that he made when he inspected the chassis at
Lobamba. My own notes do indicate that immediately after this, in his
cross-examination, he then said that he did not understand the
question, and that he went on to explain that he did not make notes
on the visit to Lobamba but had in fact made rough notes on 12th July
which he had then transferred to the file from which, at the hearing,
he had given the chassis number.
In
answer to questions that I had subsequently put to him, Mr. Van
Rooyen confirmed the sequence of events as he eventually described it
in that respect - in other words, the events relating to the way in
which he recorded the chassis number.
In
his submissions. Mr. Flynn was very critical of these aspects of the
case. As counsel defending in person on a criminal charge, that is
understandable; and as a counsel defending a man on charges on which,
pending his trial, he has not been eligible for bail, on which he has
to respond to evidentiary presumptions which are exceptions to the
ordinary criminal process, and on which he faces severe minimum
consequences if convicted, I think that it is very understandable
indeed. I think he was bound to take that view.
However,
in the presentation of a criminal prosecution, I think it is
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a
matter of common experience that things sometimes go wrong. That does
not necessarily mean that Crown witnesses have not been candid. What
it often means, in fact, is that in the way in which the record of an
investigation is put together, and sometimes in the way in which
Crown witnesses themselves give evidence from the box, other tilings
come into play which affect the credibility of the Crown case. I have
to say that as far as Mr. Van Rooyen himself was concerned, it was my
own impression that he shifted his ground in the course of
cross-examination, and from a marginal note I made at the time, it
was not my impression that he did so because he became confused. But
the truth of the matter may have been that he did become confused,
and there may well of course be innocuous reasons for the other
unexplained features of the Crown's case relating to the 1982 Hilux.
On
these charges that have been brought against Motsa relating to that
vehicle, however - in particular, in practical terms if not in
principle on these allegations under very stringent legislation - the
Crown bears a heavy burden of proof even before it can fall back on
the evidentiary presumptions that are available to it. The proof of
the allegation that Motsa in fact had the black chassis on his
homestead depends essentially on the evidence of 893 Detective
Sergeant John Dlamini. He did say that he made a contemporaneous note
of its presence by recording its number on 13th July. But I have to
say that that is the strongest point in the Crown's case to establish
that this chassis was indeed at Mr. Motsa's home. I accept that it is
some evidence that it was.
But
in any case, I do not consider that it has been shown at all that Mr.
Motsa knew himself that the black chassis (Exhibit 1) was in fact in
his possession. On the evidence, it may very well have been something
that in the ordinary course of his business was part of a vehicle
that had been taken to Fortune's - quite possibly, even at the
request of the police - and later removed to his own yard, without
his having been conscious that it was there.
Moreover,
even if it is inferred that he knew that the chassis was one of the
things that was lying in his homestead, the defence has in my view on
the evidence succeeded in showing that, more probably than not, he
did not steal the 1982 Hilux or acquire it as a criminal
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receiver.
He went into the witness box to give evidence in his defence. The
nature of his tow service and what it involved legitimately is common
ground.
The
evidence and credibility of Mr. Xulu was not impeached. Those things,
if I may put in that way, are consistent with his own explanation.
Mr. Kilukumi pointed out what he contended were inconsistencies in
Mr. Motsa's evidence, but I say that I did not find him to be a
witness who was obviously implausible at all. I do not agree that he
was patently evasive. On the contrary, and in particular, with regard
to the alleged discrepancies between his admitted statements to the
police, I find it much easier in my own mind to reconcile them than I
do to understand the features of the Crown's case that have been
described as unsatisfactory. There is nothing at all in his answers
to Superintendent Lukhele (translated in English in Exhibit 13) in
which he admits knowledge of the black chassis. Mr. Motsa has in my
judgment shown on the balance of probabilities that he had no
reasonable grounds for believing that the chassis was stolen. I am
obliged to make that finding.
Once
it comes into operation, the scope of the evidentiary presumption in
section 4(1)(a) of the Act is extremely wide. If the Crown had
succeeded in establishing that Motsa was knowingly in possession of
the black chassis, it would then lie upon him to prove not only that
he had not received it criminally, but also that he has not actually
stolen it in South Africa. On the facts of this particular case, that
presumption in my view would not be difficult to discharge. Nearly
four years have passed since the 1982 Hilux was stolen. There is no
evidence at all before me that anything more than a black chassis was
found at Motsa's premises, or that begins to suggest that he was ever
near the warburton area on 5th September 1991. To my mind those two
aspects of this case underline the inherent dangers in relying on
evidentiary presumptions. If there were any merit in the counts which
relate to the stolen 1982 Hilux, then in my view the gravamen of the
Crown's case plainly has to do not with any allegation of actual
theft or of tampering but in an allegation that Motsa was a criminal
receiver. But for the reasons that I have given, I find him not
guilty on counts 1, LA and 2 and he is discharged on each of those
counts.
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On
those counts (5 and 5A) that arise from the theft of Mr. Forssman's
1990 Hilux 4 x 4, it is acknowledged that the red Hilux shown in
Exhibit 5 was in Mr. Motsa's possession. That is not in issue. To
invoke the presumption in section 4(1)(a), the Crown must prove
beyond reasonable doubt that it is reasonably suspected to have been
a stolen vehicle.
Suspicion,
by definition, is something less than actual proof. Mr. Flynn
contended that if the Crown cannot prove that a particular vehicle
has been stolen, then it cannot prove either that there is a
reasonable suspicion that it has been stolen. The view I come to is
that I am not persuaded by that. As the evidentiary presumptions are
expressed, it does seem to me that it is possible, to put it shortly,
for a person to be convicted of stealing a motor vehicle or of
dishonestly receiving it, even if that is not the truth of the
matter. That possibility itself, in my view, goes a long way towards
explaining the dislike of the courts of law for legal presumptions,
because they may produce results that do not reflect the truth of a
thing. If for reasons of social concern, there is a need to declare
conduct to be criminal, then I think that there is much to be said
for doing that directly, instead of relying on what may be, in some
cases at least, in reality legal fiction. Nevertheless as section
4(1)(a) stands, I do not think that it is essential for the Crown, in
establishing that a motor vehicle is reasonably suspected of having
been stolen, to prove beyond reasonable doubt that the vehicle
concerned is in fact a stolen vehicle. To give rise to the
presumption, what it has to prove beyond doubt in my view -
reasonable doubt - is simply reasonable suspicion that it is stolen.
I can see no other meaning to section 4(1)(a) in that regard.
In
the present case, if it lay on the Crown to prove beyond reasonable
doubt that the red Hilux in Exhibit 5 is Mr. Forssman's stolen
vehicle, then I think Mr. Flynn's submissions about the quality of
the Crown's evidence on that point would have a great deal of force
-determinative force, in fact, I think. In his evidence in chief, Mr.
Forssman did not say that when he came to Lobamba he recognised his
vehicle by its number plate. I am bound to say that I find that
surprising. I would have thought that that would be the very first
thing that a person would have recognised his vehicle by. There is
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other
evidence about the number plate that is at first sight not easy to
understand. The other prosecution witnesses who referred to it
apparently did not notice it on first inspection. The only photograph
of the red Hilux, namely the one in Exhibit 5, does not demonstrate
this number plate. I do not find any of that easy to understand.
Surely it would be a matter of obvious interest. And on the other
hand, on the Crown's own case, it was not in dispute that it was
there. There is no evidence that, for whatever reason, it was put on
the vehicle at some time after it had been seized. But if it was here
all the time, the obvious question is why the accused, if he obtained
the vehicle dishonestly, did not take the seemingly elementary
precaution of getting rid of it.
Mr.
Flynn's submission as to the way in which the police allowed the red
Hilux to be removed from Swaziland before the trial, and despite
Motsa's claim upon it against the Government, also carries force in
my mind.
However,
despite these features of the Crown's case, I think that on a correct
view of the evidence the Crown has succeeded in proving beyond
reasonable doubt that there are reasonable grounds, objectively, for
suspecting that the red Hilux is a vehicle that was stolen from Mr.
Forssman.
The
test is objective. Notwithstanding the points made by Mr. Flynn, I
consider that a reasonable man would in fact suspect that it had been
stolen. He might not be sure of it. In fact I do not think that he
would be sure of it. But notwithstanding the features that I have
referred to, I do think that there may be innocuous reasons for those
features as well, and that a reasonable man would in fact suspect
that the red Hilux in Exhibit 5 might be Mr. Forssman's stolen
vehicle.
Then
the question is whether Motsa has proved on a balance of
probabilities that it was not stolen or dishonestly received by him.
Mr.
Motsa's explanation is that at his direction, this vehicle was
recovered at the request of the police, following an accident, and
taken to Fortune's yard, and later removed from Fortune's yard to
Motsa's own homestead. Mr. Ndzinisa supported this version. So too
did Mr. Xulu, who as I say has not been shown to be anything other
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than
a creditworthy, independent witness. Mr. Xulu is saying, as does Mr.
Ndzinisa, that the vehicle sat outside Fortune's yard for a time; and
on the Crown's own case, the view I think I have to take is that
there is no evidence that it did not have a number plate on it then -
and of course it follows that that there is no evidence that anyone
tried to conceal the number plate. I say that because what that
necessarily implies is a vehicle that has been brought to Fortune's
yard by Motsa with its number plate - with a South African number
plate - and allowed to sit outside the yard for a period of time on
public view.
Mr.
Qwabe, who falls into the same category as Mr. Xulu in my view, as
far as his credibility is concerned, said that when he approached at
his own initiative Mr. Motsa at his house to ask with his supervisor
if they could obtain spare parts from this Toyota - the red Hilux
-Mr. Motsa said to them that he could not sell to them. He explained
to them that the vehicle belonged to someone else. Rightly or wrongly
I have come to the view that Mr. Kilukumi's submission on this is
correct, that strictly speaking that is not admissible evidence.
Mr.
Kilukumi contended that the records of the questioning of Motsa and
Mr. Ndzinisa in respect of the red Hilux - Exhibit 15 in Motsa's case
and the translation Exhibit 18 in Ndzinisa's case - show that their
answers contradicted the defence case. I am not able to agree with
that. Although I do not go as far as to say that it is the only way
of approaching an interrogation, I think that there is much to be
said, in cautioning and then interrogating a suspect, to allow him at
first to make a statement in his own words and then to use a question
and answer method to clarify his answers as necessary. That is in
fact what the Judges' Rules envisage - certainly what the English
Judges' Rules envisage. They do so, subject to additional
precautions. A person who is questioned by a police officer is not
obliged to volunteer anything. In fact, the law of this jurisdiction
imposes strict limitations on the admissibility of his answers. What
the exhibits recording the interviews with Motsa show (and indeed.
Ndzinisa show) is that the Superintendent in charge of the inquiry
chose to interrogate him by means of specific questions. The answers
must be considered both in relation to those questions and also in
relation to the context. I do not consider that it has been shown, in
any
material sense, that there are contradictions which undermine
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Motsa's
account in this respect. Mr. Ndzinisa's answers to police questions
are not in any event evidence against Motsa but I do not consider
that he has been shown to be untruthful either, in the overall
context of his answers. (I wish to comment in passing that in fact in
one of his answers, Mr. motsa himself referred to the fact that
vehicles were sometimes taken to Fortune's.
On
the whole of the evidence, I do consider that Motsa has succeeded in
giving an explanation that is probably true. I can see no good reason
for concluding, in any way in which it has been put in question, that
there is anything more a reasonable doubt that has been raised
against him in that respect.
On
counts 5 and 5A, I therefore find him not guilty and he is
discharged.
DAVID
HULL
CHIEF
JUSTICE
