S v MUTERO & ORS 1999 (2) ZLR 73 (H)

Flynote

Criminal procedure ” charge ” wrong charge preferred ” charge of contravening s 12 of Miscellaneous Offences Act ” facts showing that theft had been committed ” on plea of guilty magistrate canvassing essential elements of theft ” whether conviction should be upheld

Headnote

The accused were charged with contravening s 12 of the Miscellaneous Offences Act [Chapter 9:15], namely, that they were in possession of property in circumstances giving rise to a reasonable suspicion that the property was stolen and were unable to give a satisfactory account of their possession. They pleaded guilty, but the magistrate, instead of canvassing the essential elements of this statutory offence, canvassed the essential elements of theft. He then proceeded to convict the accused of contravening s 12 of the Miscellaneous Offences Act. The trial magistrate sought to justify his actions by saying that although the accused should more properly have been charged with theft, he had convicted the accused of contravening s 12 as this offence was a competent verdict on a charge of theft.

Held, that the trial magistrate had seriously misdirected himself. Although, on a charge of theft, a contravention of s 12 is a competent verdict, theft is not a competent verdict on a charge of contravening s 12 and the penalties which may be imposed for these two offences can be different.

Held, further, that where there is certain knowledge that the goods were stolen, it is not proper to charge the offence of contravening s 12.

Held, further, that although on the facts the accused should have been charged with theft, the conviction for contravening s 12 should be upheld, relying on s 224 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provision allows the court to convict the accused of another offence than the one with which he has been charged, provided that the latter offence forms a constituent part of the crime charged.