S v McCarthy (Crim.Appeal 355 of 1984; SC 99 of 1984) [1984] ZWSC 99 (10 October 1984)
The applicant laboured under a bona fide mistake of fact and lacked the necessary mens rea; therefore, the conviction could not stand.
Source-derived case information.
- Citation
- [1984] ZWSC 99
- Parties
- Applicant: Victor Visitor McCarthy; Respondent: The State
- Court
- Supreme Court of Zimbabwe
- Jurisdiction
- Zimbabwe
- Case Number
- Crim.Appeal 355 of 1984 ; SC 99 of 1984
- Procedural Posture
- Criminal Appeal / Application for Leave to Appeal; Judgment on Appeal
- Outcome
- Appeal allowed; conviction quashed; sentence set aside.
- Legal Topics
- Possession of Precious Stones, Mens Rea, Mistake of Fact
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Visitor McCarthy
Applicant
The State
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Appeal; Judgment on Appeal
Legal Issues
- 1 Whether the applicant had the necessary mens rea for unlawful possession of emeralds
- 2 Whether the applicant acted under a bona fide mistake of fact
Ratio Decidendi
The applicant laboured under a bona fide mistake of fact and lacked the necessary mens rea; therefore, the conviction could not stand.
Court Disposition
Appeal allowed; conviction quashed; sentence set aside.
Orders
- Conviction quashed
- Sentence set aside
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. S. C. 99/84 Crim. Appeal No. 355/84 VICTOR VISITOR MCCARTHY v THE STATE SUPREME COURT OF ZIMBABWE, HARARE, OCTOBER 10. 1984. Before: BECK, JA in Chambers in terms of s. 10(3) of the Supreme Court of Zimbabwe Act. This matter came before me by way of an application for leave to prosecute in person an appeal against both conviction and sentence. The applicant was convicted under the Precious Stones Trade Act of 1978 of wrongfully and unlawfully possessing two rough and uncut emeralds. No special reasons being found he was sentenced to the mandatory minimum sentence of 3 years' imprisonment with labour. The Attorney-General has reported that the State does not wish to support the conviction because it must be held that the applicant lacked the necessary mens rea. The Public Prosecutor expressly accepted that the emeralds were handed to the applicant by a man who produced a licence and led the applicant to believe that it would be lawful for the applicant to sell the emeralds on this person’s behalf. The Public Prosecutor expressly accepted further that she applicant acted throughout in perfect good faith. This concession; the Attorney-General says, may have been hasty and ill-considered, but it was deliberately made and it was adhered to, and in the face of it the Attorney- General is unable to support the conviction. The record certainly indicates that the State that the applicant laboured throughout under a bona fide mistake of fact. Had that concession not been made the applicant may well have led further evidence on that issue. Under those circumstances the Attorney- General is very fairly of the view that the State cannot resile from that concession and that the trial court was not entitled to disbelieve the applicant's assertion that he was deceived into believing that valid authority existed for his possession of the emeralds. Accordingly in terms of s. 10(3) of the Supreme Court of Zimbabwe Act the appeal is allowed, the conviction is quashed and the sentence is set aside. The release of the applicant from prison has already been ordered.