KORONG v THE STATE 2007 (1) BLR 714 (HC)

Citation: 2007 (1) BLR 714 (HC)

Court: High Court, Lobatse
Case No: Crim App No 88 of 2006
Judge: Kirby J
Judgement Date: March 30, 2007

Counsel: T Sebego for the appellant.J J Matomela for the State.

Flynote

Criminal law - Arms and ammunition -

Mens rea - No indication in language of Act to indicate whether mens E
rea ingredient of offence - Mens rea presumed
to be ingredient of offence - Arms and Ammunition Act (Cap 24:01), ss 9(1),
9(4) and 9(5).

Headnote

The
appellant, a former member of the Botswana Defence Force, was charged with
unlawful possession of F ammunition of war without a licence, convicted
and sentenced to the statutory minimum sentence of five years' imprisonment.
The appellant alleged that he had been given the ammunition after a joint
training exercise with the British Army. He alleged further that he believed
that it was harmless blank ammunition for training purposes only and that he
had retained the ammunition as mementoes with which to decorate his house.

Held:
(1) Upon perusal of the relevant sections of the Arms and Ammunition Act (Cap
24:01), no language could G be found which indicated whether or not mens
rea was an ingredient of the offence.

(2) The
general position was that in the absence of a contrary intention being
expressed in a provision creating an offence, mens rea was presumed to be an
ingredient of such offence. Brend v Wood (1946) 175 L T 306; S v
Smith 1965 (4) SA 166 (C) and S v Mbaiwa [1988] B.L.R. 314 applied.

(3) There
was no indication in ss 9(1), 9(4) and 9(5) of the Act whether or not mens rea
was an ingredient of the H offence. It would accordingly be presumed to
be an ingredient unless the statute clearly or by necessary implication
demonstrated the intention of Parliament that it should be excluded. No such
intention was demonstrated.

(4) The
appellant had, however, failed to discharge the onus of establishing on a
balance of probabilities that he honestly, if mistakenly,
2007 (1) BLR p715

believed the
ammunition to be harmless. The magistrate had accordingly been correct in
rejecting his defence of A honest mistake and the appeal against the
conviction had to fail.

Case Information

Cases
referred to:

Brend v
Wood (1946) 175 LT 306; 62 TLR 462

Garmroudi
v The State [1987] B.L.R. 409 B

Lim Chin
Aik v R [1963] AC 160; [1963] 1 All ER 223 (PC)

Maberly v
The State [1986] B.L.R. 386

Ngugu v
The State [1989] B.L.R. 116

State v
Mafutaka 1979-1980 B.L.R. 31

RvH
1944 AD 121

R v Brass
1961 (2) SA 280 (E) C

Rv
Gritzman 1940 OPD 225

Rv
Howells [1977] QB 614; [1977] 2 WLR 716; [1977] 3 All ER 417; 65 Cr App Rep
86; 141 JP 641 (CA)

Rv
Hussain [1981] 1 WLR 416; [1981] 2 All ER 287; 72 Cr App Rep 143; 146 JP 23
(CA)

Rv
Tolson (1889) 23 QBD 168; [1886-90] All ER 26 D
S v Duma
1970 (1) SA 70 (N)

Sv
Lightfoot 1979 (3) SA 254 (T)

S v Smith
1965 (4) SA 166 (C)

State v
Mbaiwa [1988] B.L.R. 314

Sweet v
Parsley [1970] AC 132; [1969] 1 All ER 347, HL(E)

Ward and
Another v State 1975 (2) B.L.R. 22, CA E

Warner v
Metropolitan Police Commissioner [1969] 2 AC 256; [1968] 2 WLR 1303; [1968]
2 All ER 356, HL(E)

Appeal
against conviction and sentence for possession of ammunition of war without a
licence. The facts are sufficiently stated in the judgment.

T Sebego
for the appellant. F

JJ
Matomela for the State.

Judgement

KIRBY:

The
appellant, a former member of the Botswana Defence Force, was charged with
unlawful possession of G ammunition of war without a licence, contrary
to 'section 9(1)(5)' (sic) of the Arms and Ammunition Act (Cap 24:01)
(the Act). The sections were improperly cited, and should in fact have read
'section 9(1) as read with sections 9(4) and 9(5)', but the particulars were
clear and well understood, and there was no prejudice occasioned by this error.
The appellant was convicted and sentenced to the statutory minimum sentence of
five years imprisonment. H

There is no
dispute that the ammunition in question, namely 17 live rounds of 7.6mm
ammunition contained in a ammunition belt, 25 live rounds of 9mm ammunition in
a box, and three grenades, were ammunition of war as defined in the Act. It is
also agreed that the appellant was knowingly in possession of these items, and
that he had no licence to possess them.
2007 (1) BLR p716

KIRBY J

The defence
of the appellant was that he was given the ammunition by an instructor from the
British army after a A joint training exercise with the Botswana
Defence Force. He believed that it was harmless blank ammunition for training
purposes only, and thus was not ammunition of war. He retained the bullets and
grenades, so he said, as mementoes with which to decorate his house.

The only
issue between the appellant and the State is as to whether he knew the
ammunition was live or not and B it is upon this issue that his grounds of
appeal as presented by his counsel are based.

As to
conviction, it is his contention that the prosecution failed to prove mens rea,
which is an essential ingredient of the offence charged, alternatively, that he
should have been acquitted since he established on a balance of probabilities
his genuine belief that the ammunition was for training purposes only and was
harmless, C and further alternatively, that his
explanation to this effect could reasonably possibly have been true and the
State failed to disprove this explanation.

As to
sentence, he argues that in the event of the offence being found to be one of
absolute liability, then his honest belief that the ammunition was harmless
constitutes an exceptional extenuating circumstances such as D to justify in terms of s 27(4) of the Penal
Code (Cap 08:01) a sentence far lighter than the statutory minimum sentence of
five years imprisonment imposed upon him.

The sections
of the Arms and Ammunition Act under which he was charged read as follows:

'9. (1) Subject to the provisions of this Act, no

person shall own, purchase, acquire or have in his possession any E
arms or ammunition except under and in
accordance with an arms licence issued under this section.

(4) Subject to
subsection 5, any person who contravenes any provision of this section shall be
guilty of an offence and on conviction thereof shall be liable to a fine not
exceeding P250. F

(5) Where the

arms or ammunition in relation to which an offence has been committed are arms
or ammunition of war, the penalty shall be a term of imprisonment of not less
than five years and not more than 10 years.'

In these
sections there is no language which indicates whether or not mens rea is an
ingredient of the offence. G

The general
rule in regard to mens rea was explained in England by Goddard CJ in Brend v
Wood (1946) 175 LT 306 as follows:

'It is of the utmost importance for the protection of the

liberty of the subject that a court should always bear in mind that, H
unless a statute, either clearly or by
necessary implication, rules out mens rea as a constituent part of a
crime, the court should not find a man guilty of an offence unless he has a
guilty mind.'
In South
Africa Corbett J restated the position under the Roman Dutch law, in S v
Smith 1965 (4) SA 166 (C), saying:

2007 (1) BLR p717

KIRBY J

'There is a general rule that, ordinarily speaking, a crime

is not committed if the mind of the person doing the act in A
question is innocent: actus non facit reum
nisi mens sit rea.'

That is not,
of course to say that ignorance of the law itself will avail an accused person,
although the circumstances of such ignorance may in rare cases be of relevance
on the question of sentence. B

Some years
ago, Livesy Luke CJ confirmed that this general proposition applies in Botswana
too, when he held in State v Mbaiwa [1988] B.L.R. 314 at p 322 that in
the absence of a contrary intention being expressed in a provision creating an
offence, mens rea presumed to be an ingredient of such offence. C

Unlike the
position in England and South Africa, the general rules are laid down in
Botswana by statute as well. Sections 6 and 9 of the Penal Code provide a
starting point for consideration of this case.

As to
ignorance of the law s 6 states that:

'6. Ignorance of
the law does not afford any excuse for any act or omission which would
otherwise constitute an offence D unless knowledge of
the law by the offender is expressly declared to be an element of the offence.'

As regards
mistake of fact, which is generally the basis upon which lack of mens rea is
raised, s 9 provides as follows: E

'9. (1) A person who does or omits to do an act

under an honest and reasonable, but mistaken, belief in the existence of any
state of things is not criminally responsible for the act or omission to any
greater extent than if the real state of things had been such as he believed to
exist. F

(2) The operation

of this rule may be excluded by the express or implied provisions of the law
relating to the subject.'

Where in a
penal statute the operation of the rule is excluded, then an offence of strict
liability, where mens rea is not an ingredient, may be created.

In
construing statutory provisions to ascertain whether or not an offence is
absolute, the courts will be guided G principally by the presumption that in general
mens rea an ingredient of all criminal offences. Guidance is also to be found
from the words of Lord Reid in Sweet v Parsley [1969] 1 All ER 347:

'Our first duty is to consider the words of the Act, if

they show a clear intention to create an absolute offence, that is an H
end of the matter. But such cases are very
rare. There has for centuries been a presumption that Parliament did not intend
to make criminals of persons who were in no way blameworthy in what they did.
Whenever a section is silent as to mens rea there is a presumption that,
in order to give effect to the will of Parliament, we must read in words
appropriate to require mens rea.'

2007 (1) BLR p718

KIRBY J

and from: S
v Duma 1970 (1) SA 70 (N) at p 72-73 where Miller J stated, in South Africa
that: A

'The test whether the legislature intended that persons who

had no guilty mind at all should be punishable under (an) Act ... is whether
the language of the Act and all the relevant circumstances, including the scope
and apparent purpose of the B legislation are such as to show that that is
what the Legislature in truth intended. The presumption is that the Legislature
did not intend innocent violations of its enactments to be punishable and that
presumption will prevail in the absence of clear and convincing indications to
the contrary.'

Similar
provisions to those in this case, proscribing the possession of arms and
ammunition without a licence C have been considered by the courts in England
and South Africa, and different conclusions have been reached after examining
the language of the statutes in question. In Botswana too there have been
inconsistent decisions on the subject.

In England,
the cases of R v Howells [1977] 3 All ER 417 (CA) at p 422 and R v
Hussain [1981] 2 All ER 287 (CA) were concerned with the interpretation of
s 1(1) of that country's Firearms Act 1968 which read: D

'Subject to any exemption under this Act, it is an offence

for a person -

(a) to have in his possession, or to purchase or acquire, a

firearm to which this section applies without holding a firearms
certificate....'

(There
followed a long list of exceptions in subs (7) to (15) of the same section.) E

In Howell's
case possession was of an ornamental antique firearm, and in Hussain's
case of a home-made pipe gun. In both cases the court relied upon two passages
in the earlier case of Warner v Metropolitan Police Commissioner [1969]
2 AC 256, which dealt with the possession of drugs, and held that s 1(1) of the
Firearms Act created an offence of absolute liability. F

The first
passage was from Lord Morris, who said:

'It is a declared purpose of the Act to prevent the misuse

of drugs.... Parliament proceeded to define and limit the classes and
descriptions of people who alone could possess. All the indications are that
save in the case of such persons G Parliament decided
to forbid possession absolutely.'

The second
was from Lord Guest, to this effect:

'Absolute offences are by no means unknown to our law and

have been created inter alia in relation to firearms and shotguns ... a
common feature of these Acts and often Drugs Acts is that they all deal with
dangerous substances where H the object is to prevent unauthorized
possession and illegal trafficking in these articles.'

It is
noteworthy that Lord Reid dissented from this view. He disagreed that on a
truly criminal charge, which carried heavy penalties, the fact that an accused
person was guilty only of an honest mistake could be reflected,

2007 (1) BLR p719

KIRBY J

on his
conviction, by the imposition of a nominal sentence. That was the view of his
fellow judges. A

In the cases
of both Howells and Hussain the court found that the offence was
one of absolute liability, and the defendants were duly found guilty, but were
visited with modest penalties.

In South Africa,
early cases dealing with possession of firearms without a licence, such as R
v Gritzman 1940 B OPD 225, and R v Brass 1961 (2) SA 280
(E) also inclined to the view that this was an offence of strict liability.

However, in S
v Duma (supra) Miller J (Harcourt J concurring) distinguished those cases,
and after an exhaustive review of the authorities, concluded that in South
Africa the offence of possession of a firearm without a licence was not one of
absolute liability - mens rea was accordingly deemed to be an ingredient of the
offence. C There the section stated crisply:

'No person shall have any arm in his possession unless he

holds a licence under the Act to possess it.'

The accused
in that case was held to have had an honest belief that the item he picked up
on a highway was a D toy gun, and not the real thing, which it
subsequently turned out to be. It was held that the risk of the legislature's
purpose being defeated if mens rea was an ingredient of the offence was almost
negligible - 'the cases must be very rare in which the facts reveal that the
possessor was actually ignorant of the true nature of the object which he
possessed'. This case was followed in S v Lightfoot 1979 (3) SA 254 (T).
E

The Botswana
cases cited by counsel are equivocal. In Maberly v The State [1986]
B.L.R. 386, Barrington Jones J considered ss 9(1) and 9(5) of the Arms and
Ammunition Act and concluded that possession of arms and ammunition is not
absolutely prohibited, and that '... mens rea is an ingredient of an offence
under section 9 of the Arms and Ammunition Act, that is to say, that a guilty
mind is required to be proved in addition to proof of F physical possession of such ammunition'.

This case
involved the possession of a locked trunk containing ammunition of war, and it
was not proved that the appellant had knowledge of its contents. On the
question of onus, the judge remarked that '... there can be no doubt that the
State in this case was required to prove that the appellant had guilty
knowledge, ...'. G

This case
was followed by the same judge in Garmroudi v The State [1987] B.L.R.
409 at p 429.

In Ngugu
v The State [1989] B.L.R. 116 at p 119 Aboagye J considered a case where a
layman had picked up two rounds of ammunition in the bush. It was proved that
this was ammunition of war. The appellant did not testify. H He later appealed on the ground that the State
had failed to prove that he knew that the two bullets were ammunition of war.
The learned judge criticized the following passage from State v Mafutaka
1979-1980 B.L.R. 31, which had been adopted in Maberly's case (supra):

'... it is necessary that the Court should be satisfied

that a person charged ... was not only found in physical possession of the
diamonds - as the

2007 (1) BLR p720

KIRBY J

appellant clearly was - but that he had some sort of

knowledge that what was physically possessed was a forbidden thing'. A

He stated,
on the contrary, that:

'What the accused should know is that the forbidden thing

was in his possession and not the unlawfulness of the thing. If the latter were
the case the maxim ignorantia juris non excusat ... would cease to have
a meaning.' B

I would,
with great respect, differ from Aboagye J in the latter regard. There is a
clear difference between ignorance of the law itself, and a mistake of fact as
to the nature of the item in question, for example, as in Mafutaka's
case, glass for diamonds. C

In neither
of the above cases was the court's attention drawn to the earlier decision of
the Court of Appeal in Ward and Another v The State 1975 BLR 22, CA.
That case dealt with s 6 of the Immigration (Consolidation) Law (as it then
was) and s 25 of the then Arms and Ammunition Proclamation 86/1959. Two armed
officers in the British South African Police of what was then Rhodesia strayed
across the border into Botswana. They D believed themselves to be still in their own
country, but were arrested and charged.

On count 1
they were charged with failing to present themselves to the nearest immigration
offices on entering Botswana.

On count 2
they were charged with the importation of arms and ammunition into Botswana
without a permit.

It was the
defence case that mens rea was an essential element of both offences, while the
State contended E that both sections imposed absolute or strict
liability upon the offender. Common arguments were advanced in respect of both
offences, and although the court dealt in detail with the immigration offence,
it held that its decision applied equally to the Arms and Ammunition offence.

The portions
of s 25 of the Arms and Ammunition Proclamation under which they were charged,
read as follows: F

'(2) No person
shall import into Botswana any arm or ammunition save under and in accordance
with the terms of an import permit ... issued by a licensing officer ...

(5) Any person

contravening ... subsection (2) ... shall be guilty of an offence ...' G

It contained
no words indicative of mens rea being a requirement for the offence.

The court
approved the general rules as laid down in the passages quoted earlier in this
judgment from Brend v Wood and Sweet v Parsley. H

It also
held, on the authority of Lim Chin Aik v R [1963] AC 160 that in
construing a statute for this purpose the court will consider public welfare
and safety, and whether the statute can effectively be enforced without holding
that it imposes strict liability - but that even where a statute was dealing
with a grave social ill, strict liability was not necessarily intended.

Milne JA
said at p 33:

2007 (1) BLR p721

KIRBY J

'In the case of statutory offences the burden of showing a

guilty mind is often expressly placed upon the prosecution as A
where a word such as "knowingly" is
used. In other cases a statute declares specified conduct to be an offence if
it occurs "without lawful excuse". In these latter cases a conviction
must result, if the prosecution proves such conduct, unless the accused shows
on a balance of probabilities that he had a lawful excuse. But there is another
type of case in which there B are no words expressly indicating where the
burden lies of showing that the accused had a guilty or an innocent mind.'

The learned
Judge of Appeal found that in such cases the maxim 'actus non facit reum
nisi mens sit rea' applied, and that therefore mens rea was deemed to be an
ingredient of the offence. After reviewing the decisions in R v C
Tolson (1889) 23
QBD 168 and R v H 1944 AD 121, he held that in cases where the
requirement of mens rea is not specified, but is to be implied, the onus is on
the accused to prove the element of excusability (such as honest mistake) on a
balance of probabilities.

The section
of the Arms and Ammunition Proclamation considered by Milne JA was in many
respects similar to D the sections in question in this case. There
is no indication in ss 9(1), 9(4) and 9(5) of the Arms and Ammunition Act
whether or not mens rea is an ingredient of the offence. This will accordingly
be presumed to be an ingredient unless the statute clearly or by necessary
implication demonstrates the intention of Parliament that it should be
excluded.

It must be
acknowledged that the possession of arms and ammunition, and especially arms
and ammunition of E war, is a very serious offence, designed to
address, at the time, the twin social ills of violent crime and armed
insurgency. However, there is no clear indication to be gleaned from the Act of
a positive intention to exclude mens rea. There is no exhaustive list of
exceptions in a subsequent subsection, as in Warner's case (supra). More
importantly, s 9(5) imposes a compulsory minimum sentence of five years
imprisonment upon any person F convicted under that section. It would be very
rare indeed, if ever, that parliament could intend to imprison a person for
five years upon conviction for an offence committed by him on the strength of
an honest mistake, and with no guilty mind at all. It would be necessary in
such a case for the statute to state as much explicitly and with no room for
doubt. See, in this regard the words of Lord Reid in Warner's case
(supra) at p 365: G

'In Sambasivam v Public Prosecutor, Federation of Malaya

[1950] AC 458 the Privy Council had to deal with emergency regulations
(described as) "a drastic code designed to meet a state of grave
disorder". The words were that "any person H who carries ... any
firearm not being a firearm which he is duly licensed to carry ... shall be
guilty of an offence". Lord MacDermott said at p 469: "It was
conceded on behalf of the Crown - and rightly in their Lordships' opinion -
that 'carries' here means 'carries to his knowledge', and that the carrying of
a firearm by a person who did not know what he carried would not constitute an
offence under the provision." No doubt this expression of opinion by the
Board was obiter, but it is significant that even in
2007 (1) BLR p722

KIRBY J

an enactment dealing with so grave a menace to public

safety the Board did not think that words which apparently created A
an absolute offence ought to be so
interpreted. No doubt one reason was the drastic penalty. It is much easier
to infer an intention to exclude mens rea when the penalty is only pecuniary.'
(My emphasis)

I
accordingly agree with the decision in Maberly's case (supra) that mens
rea is an ingredient of the offences B under ss 9(1), 9(4) and 9(5) of the Arms and
Ammunition Act. I do not agree, however, with the conclusion in that case that
the State has the onus of proving mens rea beyond reasonable doubt in a charge
under those sections. The sections themselves are silent as to where the burden
lies.

There are at
least two sections of the Arms and Ammunition Act, namely ss 17 and 18 where
the legislature has C deliberately included the word 'knowingly' as
a prerequisite for an offence - the offence of knowingly employing a convicted
arms dealer (s 17(b)), and the offence of knowingly making a false entry
in a register (s 18(4)(b)). As was held by Milne JA in Ward's
case (supra), the use of the word 'knowingly' demonstrates an onus on the
prosecution to prove mens rea. However, as Milne JA also found, when the
section is, in contrast, silent on the D issue, as in the case of ss 9(1), 9(4) and
9(5) in this case, and particularly where for practical reasons it is not
usually possible for the State to positively prove mens rea then it is for the
accused person to prove his 'excusability' or innocent but mistaken belief on a
balance of probabilities. E

Accordingly,
on a charge under those sections I hold that:

(a) Mens rea is an ingredient of the offence

of possession of arms or ammunition including arms and ammunition of war,
without a licence.

(b) Once possession is proved (including animus

possidendi) the necessary means rea is presumed unless the accused can show
on a balance of probabilities that through honest mistake or otherwise F
(but not through ignorance of the law) he had
no mens rea.

So if, in
this case, the appellant could prove on a balance of probabilities his honest
but mistaken belief that the ammunition possessed by him was harmless training
material for ornamental purposes, and not ammunition of war, he would be
entitled to his acquittal. G

In this
regard, the magistrate, although he laid no legal basis for this, correctly
dealt with the burden of proof. He said in his judgment 'as to whether the
accused did not know that the exhibited ammunitions were harmful or
serviceable, the onus is indeed upon him to prove that fact on a balance of
probabilities'. He assessed the H evidence of the appellant and the
probabilities, and concluded that the appellant knew the ammunition was live
and serviceable. This is a finding on credibility, and an appeal court will not
lightly interfere with such, unless cogent reasons to do so appear from the
record. This is particularly so as the magistrate had the opportunity of
observing the appellant in the witness box and observing his demeanour.

The
magistrate was in error on one point, namely in finding that even in court

2007 (1) BLR p723

KIRBY J

the
appellant insisted that the ammunition consisted of harmless training blanks.
In fact he did not do so. Under cross-examination he said the following: A

'After the affidavit came out I realized it was unlawful

for me to keep these items ... I admit I was in unlawful possession of live
ammunition of war ... in fact I had pleaded guilty right from the beginning.'

The record
shows that he did initially plead guilty, but the magistrate rightly entered a
plea of not guilty when he added that when he received the ammunition B
he thought it was not
live. In his evidence in chief the appellant said:

'I told the investigating officer that I did not know if

the ammunition was harmful or not and I did not know if they were genuine or
not. I further told him I used them as part of C decoration in my
house.'

Under
cross-examination he departed from this position and told the court:

'Well, I knew them to be training ammunition which were

harmless. We exchanged this with British soldiers who were here to train us.' D

I have no
doubt that in the final analysis the magistrate was correct in holding that the
appellant had failed to discharge his onus of establishing on a balance of
probabilities that he honestly, if mistakenly, believed the ammunition to be
harmless. His own evidence in chief was enough to negative this. As a trained
soldier he E knew that ammunition is potentially lethal. He
had a clear duty upon coming into possession of this to ensure that it was not
live and dangerous, and that he had a licence or proper authority to possess
it.

There are
also inherent improbabilities in his defence. First, while an ammunition belt
of bullets might make a suitable decoration for his house, a small box
containing 25 rounds of ammunition would hardly do so. Second, as the
magistrate found, a military instructor would be most unlikely to present live
ammunition to a F trainee in a friendly force on the dangerous
pretext that they were blanks. Thirdly, as a trained soldier he would not
assume, without checking, that unmarked bullets were blanks rather than live
ammunition.

The
magistrate was correct to reject his defence of honest mistake and the appeal
against conviction must fail.

As to
sentence, five years' imprisonment was the minimum term the magistrate was
permitted by law to impose unless exceptional extenuating circumstances were G
shown. In my judgment this
could only have been the case if the offence had been one of strict liability,
and the appellant was found to have held the honest but mistaken belief that
the bullets were blanks. This is not the case. In fact the offence is
aggravated by the fact that the appellant, as a former soldier, would have been
particularly well informed of the hazardous nature of ammunition of war. H

In result
the appeal against sentence must also fail. The order of the court is that the
appeal against conviction and sentence is dismissed.

Appeal dismissed.