High Court Judge Justice Benjamin Chikowero recently overturned the conviction of a Harare woman who had been sentenced to two years in prison for possessing 2 kilograms of marijuana.
In October last year, Winnie Machikiti, 29, was found guilty by Magistrate Ruth Moyo, who deemed the quantity of dagga in her possession substantial enough to warrant a sentence more severe than community service.
She was sentenced to 24 months
imprisonment with 10 months imprisonment suspended on condition of good behaviour for the next five years, leaving an effective term of 14 months imprisonment. The dagga was forfeited to the State for destruction.
Machikiti appealed her conviction and sentence, arguing through her lawyer Lloyd Toendepi, of Muvhami Attorneys, that the State had admitted in court not having conducted laboratory tests to confirm the substance in her possession was indeed dagga.
“Hence, the court a quo clearly misdirected itself by convicting the accused person in the absence of a toxicology report confirming that the drug in question was in fact a dangerous drug as defined and prohibited in the Dangerous Drugs Act,” Toendepi said.
“No forensic report or toxicology report was placed before the court to show that the so-called drug contained transdelta-9-tetrahydrocannabinol (THC).
“The evidence in relation to the object of possession was manifestly unreliable and nothing can stand from a nullity.”
Toendepi further argued that magistrate Moyo had erred in relying on the State’s evidence, as their witnesses were not narcotics experts.
“The first stage is elementary: it was pertinent for the material to be taken to the laboratory and tested. This was not done and was admitted in cross examination.
“The court wrongly assumed the role of a toxicology expert and how it was equipped with the scientific expertise so as to make a definitive conclusion on the identification of the so-called drug induces a sense of shock.
“This error was further compounded by the fact that the author of that weight certificate was not called to testify on the veracity of its contents,” he said.
The State opposed Machikiti’s application, primarily citing the allegations that she was found in possession of the dagga and her claim of ignorance regarding its nature.
“It is submitted that the Appellant’s defence outline clearly shows that her chosen line of defence was that the dagga did not belong to her. In light of the fact that she was in physical custody that amounts to actual possession, the second test of possession, that is the mental aspect would have kicked in. From her Defence Outline, she never disputed that she possessed the dagga or explained that she did not know it was dagga”
Machikiti was immediately released after Justice Chikowero upheld Toendepi’s argument due to the state’s inability to prove a crucial aspect of the crime.
“The conviction is quashed and the sentence is set aside, a warrant for the release of the Appellant is issued,” part of the order read.
The court stated that it would provide detailed reasons for its decision in due time. This judgment will serve as a valuable reference, particularly regarding procedural matters in similar cases.
