The unconstitutionality of the offence of possession of property reasonably suspected of being stolen
Author | Esther Gumboh |
DOI | 10.10520/EJC76237 |
Published date | 01 January 2010 |
Date | 01 January 2010 |
Pages | 163-182 |
THE UNCONSTITUTIONALITY OF THE
OFFENCE OF POSSESSION OF PROPERTY
REASONABLY SUSPECTED OF BEING
STOLEN
Esther Gumboh*
ABSTRACT
This article is an exposition of section 329 of the Malawian Penal Code
which renders a person liable to punishment if he or she fails to give a satis-
factory explanation of his or her possession of property reasonably suspected
of being stolen. It critiques the nature and elements of this offence and argues
that the offence is unconstitutional, because it severely impinges upon the
doctrine of the rule of law, especially the principle of legality, and the right to
a fair trial, particularly the presumption of innocence and the right to re-
main silent. Since this offence is neither necessary nor reasonable in a free
and democratic society, it is argued that it should be decriminalised.
I INTRODUCTION
This article scrutinises section 329 of the Penal Code,1which provides for
the offence of being found in possession of property reasonably suspected of
being stolen. The section is couched as follows:
Any person who is brought before a court charged with having in his possession
anything which may be reasonably suspected of having been stolen or unlaw
fully obtained, and who does not give an account to the satisfaction of such court
of how he came by the same, shall be guilty of a misdemeanour.
POSSESSION OF PROPERTY SUSPECTED OF BEING STOLEN 163
Doctoral candidate; Teaching and Research Assistant, Department of Public Law, University of
Cape Town. I am indebted to Professor Jonathan Burchell and Professor Wouter de Vos of the
University of Cape Town for diligently supervising my LLM thesis upon which this article is
based. I am also grateful to Professor Danwood Chirwa for encouraging me to write this article. I
would also like to thank Justice Ken Manda and the two anonymous reviewers of the Malawi
Law Journal for their comments.
*
1Chapter 7:01 of the Laws of Malawi.
The main element of this offence is the failure of a person to satisfy a
court that his or her possession is innocent despite there being a suspicion that
it is stolen. It shall be argued that the offence infringes the right to a fair trial –
in particular, the right to remain silent and the presumption of innocence. In
order to appreciate the nature of section 329, the article examines in detail the
elements and procedural requirements of the offence. Thereafter, arguments
are advanced to establish that it is unconstitutional.
II THENATUREOFTHEOFFENCE
Section 329 has its roots in section 24 of the Metropolitan Police Courts
Act 1839 of England, which supplemented the powers of arrest under section
55 of the Police Force Ordinance 1839 and section 66 of the Metropolitan Po-
lice Act 1839. Hadley v Perks2described the offence thus:
It is an offence for a person to have in his possession … anything which may be
reasonably suspected of being stolen or unlawfully obtained, without being able
to give a satisfactory account of how he came by it. The third element [the inabil
ity to give a satisfactory account] is not a special defence … but an ingredient of
the offence which places the onus on the defendant, in order to avoid a finding of
guilt, to establish that he is able to give an explanation as to his innocent posses
sion of the property.
It follows that the offence is not completed until the accused fails to give a
satisfactory account of his or her possession to a court.3It is the failure to give a
satisfactory account that constitutes the accused person’s guilt.4As such, al-
though in practice the police officer bringing the accused before the court
presents a formal charge sheet accusing the suspect of contravening section
329, the commission of the offence is in futuro.5A court has a duty to demand
an explanation from the accused.6
It could be argued that the commission of the offence is completed once
there is reasonable suspicion and the defendant fails to provide a satisfactory
account to the arresting officer and that the requirement to give an explana-
tion to ‘the satisfaction of such court’ is superfluous. However, this argument
164 (2010) MLJ VOL.4, ISSUE 2
2(1866) LR 1 QB 444, 462. See also A G vChiu Man lun [1989]1 HKLR 99 (CA).
3R v Dickson High Court of Nyasaland, Criminal Case No 21 of 1955 (unreported).
4RvWhite[1923 60] 1 ALR Mal 401, 405; R v Anyelwesye [1964 66] 3 ALR Mal 367, 369; Rv
Chitwanga [1990] 13 MLR 383.
5R v Anyelwesye, above note 4, 369.
6RvChisale[1978 80] 9 ALR Mal 418, 420.
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