[2014] 5 MLRA
Nachilongo Doreen
v. PP
403
[25] In any event, the defence of the appellant that the drugs might have been
planted by someone else (which is tied up to the issue of the eight hours gap)
was duly considered by the learned trial judge.
[26] The prosecution’s case is one of presumed possession under s 37(d) and
of trafficking under s 2 of the Act. Looking at the evidence in totality, we
agree with the learned trial judge that the prosecution has made out a prima
facie case against the appellant and has rightly called upon the appellant to
enter her defence. It is our view that there was no gap in the prosecution’s case
and that the learned trial judge was correct in finding that there was custody
and control of the bag. Applying s 37(d), the appellant was presumed to have
knowledge of the drugs in the bag (see PP v. Abdul Rahman Akif [2007] 1 MLRA
568). Further, the learned trial judge was correct in finding trafficking under s 2
where the appellant was found concealing, carrying and transporting the drugs
from Johannesburg to Malaysia, bearing in mind the quantity of the drugs (see
PP v. Abdul Manaf Muhamad Hassan [2006] 1 MLRA 319).
[27] On the second issue raised by the appellant, we are similarly of the view
that it is without merits. Both the legal burden on the prosecution to prove
its case beyond reasonable doubt and the evidential burden of the accused to
raise a reasonable doubt can only be fully discharged at the end of the whole
case (see Balachandran v. PP [2004] 2 MLRA 547). Viewed in that context
and notwithstanding the words ‘prima facie’ used by the learned trial judge in
the last paragraph of her judgment, we find that the learned trial judge had
correctly evaluated all the evidence and had applied the correct standard of
proof at the conclusion of the trial, ie that the prosecution has proved its case
beyond reasonable doubt, hence her conclusion that the defence has not raised
a reasonable doubt on the prosecution’s case.
[28] In the final analysis, it is our view that the conviction against the appellant
is safe. We therefore, unanimously dismissed the appeal and affirmed the
conviction and sentence by the High Court.
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