Nomatter Goliath and Fanuel Mbewe v The State

The appellants appeared before the magistrate at Bindura charged with unlawful possession of gold in contravention of the Gold Trade Act, [Cap 21:03]. Police received information alleging illegal gold dealings at the first appellant's residence and two police details went to investigate. Upon entering the bedroom, they found both appellants present. According to the State outline, the second appellant was holding something in his hand which he threw on a cupboard when he saw the detectives. Detective Karemba picked it up and discovered it was gold. Both appellants disputed the allegation throughout. After a contested trial, they were both found guilty and sentenced on 18 February 2009 to the minimum mandatory five years imprisonment each. They appealed against both conviction and sentence.

• Whether the State proved beyond reasonable doubt that the appellants were in possession of the gold
• Whether the evidence regarding who possessed the gold was sufficiently clear and consistent to support a conviction
• Whether the trial magistrate properly resolved contradictory evidence before convicting
• Whether where two or more persons are accused of an offence with no connivance alleged, the State must prove what each individual accused did to make them criminally liable

The appeals against conviction were allowed. The verdict in the court a quo was quashed and the sentence set aside. Both accused were found not guilty and acquitted. The appeals against sentence fell away.

Where the State's evidence on a critical element of an offence (possession) is incurably contradictory, with prosecution witnesses giving inconsistent accounts that are not reconciled by the trial court, and where the trial magistrate makes contradictory findings without explaining the resolution of the contradictions, the conviction cannot stand as the State has failed to prove its case beyond reasonable doubt. Where two or more persons are accused of committing an offence in which no connivance is alleged, the State must prove what each individual accused did or did not do which makes them criminally liable for the offence charged. A trial court cannot convict merely based on the presence of accused persons where the evidence does not clearly establish who possessed the contraband.

The court cited and endorsed the principle from R v Difford 1937 AD 372 at 373 that no onus rests on the accused to convince the court of the truth of any explanation given. Even if the explanation is improbable, the court is not entitled to convict unless satisfied beyond reasonable doubt that the explanation is false. If there is any reasonable possibility of the explanation being true, the accused is entitled to acquittal. The court also noted that physical possession is not necessary for a conviction for possession of contraband, but did not elaborate on this point as the case turned on the failure to prove any form of possession.

This case reinforces fundamental principles of criminal evidence in Zimbabwean law, particularly: (1) the requirement that the State prove its case beyond reasonable doubt; (2) the need for trial courts to properly resolve material contradictions in prosecution evidence before convicting; (3) where multiple accused are charged without alleging connivance, the State must prove what each individual did to establish criminal liability; (4) the application of the R v Difford principle that accused persons are entitled to acquittal if there is any reasonable possibility their explanation is true; and (5) that contradictory evidence from key State witnesses on material issues (such as who possessed the contraband) renders convictions unsafe. The case demonstrates appellate oversight of lower courts' treatment of evidence and their obligation to provide reasoned findings on contradictory evidence.