Application for leave to
Appeal
NDOU
J: This
is an application for leave to appeal against the acquittal of the
respondent in terms of section 61(1) of the Magistrates' Court Act
[Chapter 7:10].
The salient facts of this case
are the following:
It is common cause that the
respondent is a young man doing his final year of a Masters Degree in
South Africa. He is heavily involved in motor racing as clearly
evinced from the documents produced during the trial.
This
was not challenged by the State.
On the fateful day he was
taken by lift to Victoria Falls Airport where he intended to board a
flight to South Africa. He had left it rather late to check in. He
had packed a non-working starter device subject matter of this case
in his hold luggage. He intended to take the device to South Africa
to see if it could be mended in order to use it in his leisure
activities.
In the process of checking in
prior to departure he did not mention to the aviation authorities
that he had this device in the luggage that was to be put in the hold
of the aircraft. There is no evidence to show that, had he mentioned
that the device was in the luggage intended for the hold rather than
cabin luggage that he would not have been allowed to proceed.
The scanning security device
at the airport revealed the presence of this device in the hold
luggage when the respondent was about to board the aircraft. He was
arrested and detained and the device seized.
It was accepted during the
trial that there was no sinister motive in the respondent's
possession of the device. It was also accepted that during the
flight neither he nor anyone else, could have had any access to the
device.
The respondent was charged
under section 150(a) of the Criminal Law (Codification and Reform)
Act [Chapter 9:23], the allegation being that he handed a race
starter gun to the airport handling staff for the purpose of being
placed aboard an aircraft.
This
section falls under Part VI with the heading “Hijack
and Other Crimes Involving Aircraft”
In this part, “dangerous
goods” are defined in section 145(1)(a) and (b).
Subsection (1)(a) is
inappropriate as on the applicant's own evidence, at page 44, at
paragraph 6(g) of the expert witness Inspector Makumbe (A Zimbabwe
Republic Police Provincial Armourer) describes the device as follows
–
“the
weapon is therefore not a firearm as it is only used for purposes as
a starter gun for athletics”.
He also states that the device
used “.22 ammo blanks only as the barrel is blocked and has a spout
on the top”.
Further that “the weapon's
main components are made of putah, an aluminum alloy and has got
plastic grips… the material that was used, if not reinforced with
steel or gun metal cannot be made into a firearm and neither can it
be converted into a firearm.”
In the circumstances, the
applicant must therefore rely on subsection (1)(b) which states
“substances and things which by reason of their nature or condition
may endanger the safety of an aircraft or of any person on board on
aircraft”.
The applicant did not adduce
evidence during the trial that a starter gun of this kind placed in
the hold of the aircraft was by reason of its nature or condition
dangerous to the safety of the aircraft or any person aboard the
aircraft.
In my humble view the clear
intention of the legislature is to punish persons who place on board
an aircraft items like bombs and explosives that may detonate when
the aircraft is in flight.
The offence, on conviction,
carries a sentence of up to fifteen (15) years imprisonment without
the option of a fine.
The applicant's main
argument appears to be that the act by the respondent was one of
strict liability.
It
seems to me that the entire basis of this application is premised on
this strict liability argument. As alluded to above, the penalty for
contravention section 150, supra,
is imprisonment for up to fifteen (15) years without the option of a
fine.
This submission, is with
respect, untenable.
This
is so because of the proviso to section 17 of the Criminal Law
(Codification and Reform) Act, supra,
which states:-
“Provided
that notwithstanding subparagraph (i) and (ii) the court shall not
hold that the legislature impliedly intended a crime to be a strict
liability if the penalty for it is mandatory
imprisonment or imprisonment without the option of a fine.”
The
offence defined in section 150, supra,
carried a penalty of imprisonment without the option of a fine, and
accordingly, falls squarely within the terms of the proviso to
section 17,
supra.
In
other words, it cannot be argued that the offence defined under
section 150, supra,
is one of strict liability. Mens
rea,
is therefore, an element that the applicant had to prove – S
v Zemura
1973 (2) ZLR 357 ( ) and Attorney
General
v Mbewe
2004 ( ) ZLR 86 (H).
This main submission by the
applicant is clearly wrong.
This is however, not the end
of the matter.
The
full citation of the charge sheet, in
casu,
is the following -
“C/S
150(a) of the Criminal Law Code Act Chapter 9:23 [sic]”
“Placing
or carrying dangerous goods on an aircraft” ARW section 49(c)(i)
and 50 of the Aviation (Security) [sic]
Regulations 2006”
It
was wrong for the applicant to endeavour to import into section 150,
supra,
the definitions in provisions of sections 49 and 50 of the Civil
Aviation Regulations, supra.
The
enabling Act under which these Regulations are promulgated makes it
quite clear that the offence which the applicant endeavoured to
import to this prosecution is in effect a “stand alone” offence.
In other words Part VII of the regulations sets out a substantive
offence and provides a penalty. If the applicant framed a charge
under the Regulations it would have been entitled to use the
definition contained in section 49 supra.
The court would have been able to impose the penalty prescribed in
section 79(5) of the Regulations.
However, the applicant chose
not to charge the respondent under the more appropriate legislation.
If the applicant had done so,
it seems to me that it would have been difficult for the respondent
to avoid a conviction. This is so because Part VII of the regulations
covers a vast array of prohibited articles. It covers not only
firearms and grenades but also such items as pellet guns, toy guns,
scissors, pocket knives, spears, wooden articles, lighter fluid,
certain wrist bands etc.
But does this error mark the
end of the applicant's case?
The
applicant erred by simply not charging the offence defined in section
150, supra,
as the main charge with alternative charge (s) defined in Part VII of
the Regulations. This limits me to consider whether there are any
competent verdicts flowing from a charge defined in section 150
supra.
Put
in another way, would the provisions of section 274 of the Criminal
Law (Codification and Reform) Act,
supra,
come to the aid of the applicant's case?
The
court a
quo
should have at least considered whether the essential elements of the
offences under Part VII of the Regulations are present as provided
for by section 274 supra.
The magistrate overlooked the provisions of section 274, supra.
For that reason alone I would
grant leave to appeal.
Accordingly, the application
for leave to appeal is hereby granted.
Criminal
Division, Attorney General's Office,
applicant's legal practitioners
Paul
Connolly Legal Practitioners,
respondent's legal practitioners
