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Peter Mcintyre and others v the King
Eswatini, Kingdom of
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All three appellants have appealed against their convictions. There is no appeal against the sentences, because of the mandatory provisions of the legislation in casu. The representative of the Crown conceded Accused No. 5's appeal, due to the unsatisfactory nature of the evidence against him, specifically. Since Accused No. 5 spoke a different language than the others, the evidence lacked clarity concerning what he said. This was found to be proper and fair, and Accused No. 5 was accordingly found not guilty and discharged. The next issue of contention was whether the aforesaid rhino horns possessed by Accused No. 1 and trafficked by Accused No. 6 were of an animal "indigenous of Swaziland". In his judgement the Chief Justice rejected this contention that the Crown had to prove this, as legislation includes rhinoceros of all species, no matter if indigenous or not. However, Mr. Kuny, representing the Crown, was convinced that proof is needed and thus the appeals of Accused Nos. 1 and 6 were upheld. So, scientific studies, including migration flows, probability calculations, DNA-testing, etc., were completed to establish that the horns in question were of a white rhino, which are indigenous to Swaziland. However, the Judge, quoting past cases Miller v Minister of Pensions 1957(2) and R v Mlambo 1957(4), concluded that the Crown discharged the onus of proving beyond reasonable doubt that the horns in question were those of a white rhino, and animal indigenous to Swaziland. Therefore, the appeal cannot be upheld on these grounds. Two other grounds of appeal, which the Counsel contended, constituted irregularities. During the investigation described above, a tape recorder was used to gather evidence, which was subsequently presented as such in the court proceedings to convict Accused Nos. 1 and 6. The Counsel was of the view that there are unsatisfactory features concerning the evidence: 1. Recorded on a small recorder operated manually, as well as kept in possession, by one of the rangers up until the trial. This included two transcriptions of the tape recording done at different dates, which differed in many respects from each one another. 2. The Crown counsel consulted with two of the Crown witnesses, one of whom was still under cross-examination. This conduct was "unethical, irregular and unwise". It was contended that Accused No. 1 was therefore prejudiced and had not received a fair trial. Concerning these issues, the trial court held that "while the proper procedure had not been followed, the purpose for which the consultation had taken place was a bona fide one and no sinister inference could be drawn and no real possibility of prejudice could be envisaged". The Judge reflected this view as well. Court judgement: In the first place it is clear that the evidence of Accused No. 1's possession of the horns was overwhelming. The evidence was presented in a consistent fashion and no real criticism can be leveled at their credibility because of material contradictions. Concerning Accused No. 6, it was taken into account that the court clearly relied on the evidence put forth (tape recording), convicting Accused No. 6, and that it erred in doing so and that this constituted an irregularity. The Judge reasoned however, that the court can still convict if on the evidence and the findings of credibility, unaffected by the irregularity, there is proof beyond reasonable doubt. Both appeals are dismissed and their convictions and charges are confirmed. (Provided by: UNODC SHERLOC)