S v BLANCHARD & ORS 1999 (2) ZLR 168 (H)

Flynote

Criminal law (statutory offences) — Aircraft (Offences) Act [Chapter 9:01] — s 7(1)(a) — attempting to place dangerous goods on an aircraft without lawful excuse — meaning of "lawful excuse" — onus on accused to show existence of lawful excuse — c Law and Order (Maintenance) Act [Chapter 11:07] — s 37(3) — possession of arms of war "without lawful authority or reasonable excuse" — meaning — onus on accused

Criminal procedure (sentence) — statutory offences — Law and Order (Maintenance) Act [Chapter 11:07] — s 37(3) — D possession of arms of war — "special circumstances" for not imposing mandatory minimum sentence — includes torture and other ill-treatment at hands of authorities

Headnote

The accused were arrested at Harare Airport after various firearms, which had been dismantled, were found in the baggage they had checked in for a flight to a destination outside Zimbabwe. In a truck which they had left in a parking garage was found a large assortment of firearms, ammunition and related material. These items had been brought into the country by the accused, who had not declared them when they entered the country. The accused were charged with (1) attempting, without lawful excuse, to place dangerous goods on an aircraft; and (2) possessing arms of war without reasonable excuse. In respect of the weapons found in the vehicle, they said that they had been working as missionaries in the Congo and because of the unstable situation there, the weapons had been acquired. Their work was finished in the Congo and they were returning the weapons to the United States.

Held, in respect of the first charge, that what the accused had attempted to place on the aircraft were firearms, despite the fact that the items had been dismantled, and thus fell within the definition of "dangerous goods".

Held, in respect of both offences, that once the State had discharged the onus of showing that the accused had done the acts they were charged with doing, the onus was on them to show that they had "lawful authority" or "reasonable excuse". These phrases had different meanings. The latter was wider in meaning than the former, and meant "not unlawfully" in the wide sense.

Held, further, that the accused had not discharged the onus on them.

Held, further, that the ill-treatment and torture the accused had received at the hands of the police while they were in custody constituted special circumstances for not imposing the mandatory minimum sentence that would normally be imposed for possessing arms of war.