Gaboekae v The State

Country
Court
Seat of court
Francistown
Court jurisdiction
Date of opinion
1983
Abstract

This was an appeal against his conviction and sentences in the High Court. The appellant was convicted by the Magistrate's Court at Maun of unlawful possession of Government trophies, namely 12 elephant tusks, contrary to section 82(2) of the Fauna Conservation Act (Cap. 38:01) (1973 Rev.). He was sentenced to a fine of P400 or six months' imprisonment in default of payment and to one year's imprisonment, this being the maximum punishment provided. The main issue for the consideration of the High Court was whether mens rea was an essential ingredient of the offence created by section 82(2) of the Act. Having regard to the undoubted unlawfulness of the possession of the Government trophies by the appellant the onus was cast upon him of proving on the balance of probabilities that he did not have the necessary mens rea. On the evidence however it could not be held that what he did was an innocent violation. The judge held that far from the evidence showing on the balance of probabilities that the appellant lacked mens rea it had quite the opposite effect. The judge held that the appeal against conviction must fail and therefore dismissed it. The appeal against sentence also failed and it was dismissed. There was every justification, having regard to the size of the operation and to the conclusion that false certificates were knowingly used in an attempt to disguise the offence, for a stiff custodial sentence.

Language of document
English
Reference number
[1983] BLR 94]
Transnational
No
Decision
The judge held that the appeal against conviction must fail and therefore dismissed it. The appeal against sentence also failed and it was dismissed.
Appealed
Yes
Penalty
Imprisonment: 12 months Fine: P400.00
Court cases cited
State v Mosinyi and Others 1972 (2) B.L.R. 31 (HC)
Sweet v Parsley [1969] 1 All E.R. 347, H.L.
H Warner v Metropolitan Police Commissioner [1968] 2 All E.R. 356, H.L.
Legislation cited
Fauna Conservation Act (Cap. 38:01) (1973 Rev.).