S v CHIKUKWA
HIGH COURT, HARARE
[Criminal Trial HH 813-16]
October 3, 2016
CHITAPI J
Criminal procedure - Charge - Splitting of - Rationale for rule against - Extent to which rule has been diluted by section 145 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Section 145 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for what may be done when it is not clear which of several offences can be constituted by the facts proved. In that event, the accused may be charged with having committed all or any of those offences, and any number of such charges may be tried at one time; or the accused may be charged in the alternative with having committed some or one of those offences. The section has largely diluted the scope of the exception which an accused can take based on an alleged splitting of charges. It allows great latitude to the State to charge various offences, whether separately or in the alternative, arising from one act or series of acts or where facts are uncertain as to what charge exactly to put to the accused in the indictment. The objection to a slitting of charges may well have become academic in view of the provisions of the section.
Held, that one of the reasons for the rule against splitting of charges is that the rule is intended to protect the accused from being unduly prejudiced due to a multiplicity of convictions arising from one continuous conduct, in that the accused would then have to be sentenced on each charge. This can be cured by taking the counts as one for sentence.
Held, further, that the test for determining if there has been a splitting of charges is not a rule of law but of logic and common sense. The facts of each case must be considered on their merits in order to achieve fairness towards the accused. The application of the practice and tests should not lead to fettering the authority of the Prosecutor-General to bring to court against the accused the charges which, on the evidence available, the accused should answer to.
Cases cited:
R v Disney [1933] 1 KB 238; [1933] All ER Rep 626, referred to
R v Gordon 1909 EDC 254, referred to
R v Johannes 1925 TPD 782, referred to
R v Kuzwayo 1960 (1) SA 340 (A), referred to
R v Molloy [1921] 2 KB 364; (1921) 15 Cr App R 170; 37 TLR 611, referred to
R v Peterson & Ors 1970 (1) RLR 49 (G); 1971 (2) SA 130 (R), referred to
R v Sabuyi 1905 TS 170, referred to
S v Chinemo 1985 (1) ZLR 32 (H), referred to
S v Dzimuri & Ors 1997 (2) ZLR 27 (H), referred to
S v Grobler En 'n Ander 1966 (1) SA 507 (A), referred to
S v Jambani 1982 (2) ZLR 213 (H), not followed
S v Mampa 1985 (4) SA 633 (C), referred to
S v Ndou & Ors 1971 (1) SA 668 (A), referred to
S v Zacharia 2002 (1) ZLR 48 (H), referred to
Legislation considered:
Zimbabwe:
Criminal Law (Codification and Reform) Act [Chapter 9:23], s 136 (a), (b)
Criminal Procedure and Evidence Act [Chapter 9:07], ss 145, 165, 167, 171
Mines and Minerals Act [Chapter 21:05], ss 301, 302
Money Laundering and Proceeds of Crime Act [Chapter 9:24], s 8 (3), (6)
South Africa:
Criminal Procedure Act 51 of 1977, s 83
Book cited:
Feltoe G Criminal Defender's Handbook (Revised edition, Legal Resources Foundation, Harare, 2008) at p 70
T Kasema, for the State
V Chikomo, for the accused
CHITAPI J:
The accused was indicted to this Court on two charges, one of fraud as defined in s 136 (a) and (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and, alternatively contravention of s 302 of the Mines and Minerals Act [Chapter 21:05], which section was quoted as "ceding or assigning any right without authority from the President of Zimbabwe". The second charge was money laundering as defined in s 8 (3) of the Money Laundering and Proceeds of Crime Act [Chapter 9:24]. The details of the charges will be set out later.
The accused's trial was set down to 27 July 2016. The trial did not commence. The accused had been assigned a pro deo counsel by the Registrar of this Court. The pro deo counsel was Mr FG Gijima. When Mr Gijima sought to obtain instructions from the accused person, the accused advised him that he preferred to engage counsel of his choice. Mr Gijima, who had been holding on to the brief since 16 June 2016, then formally applied to be excused. Miss V Chikomo who was in court advised the court that she had assumed agency for the accused. She indicated that she or her firm, Majoko and Majoko legal practitioners, had always represented the accused from the time of his arrest. She made an application in terms of s 165 of the Criminal Procedure and Evidence Act [Chapter 9:07] for the postponement of the trial. She also applied in terms of s 167 of the same Act that the accused person's bail be extended. The reason given for seeking the postponement was to allow the legal practitioner sufficient time to consider the indictment papers, consult with the accused and thereafter prepare a defence outline. The State did not oppose the application. The court postponed the case to 16 August 2016, having agreed that it sacrifices its vacation period to accommodate the trial. When the case came up for trial on 16 August 2016, it was further postponed to 23 August 2016 on account of the unavailability of the trial judge who was engaged in a training programme.
Prior to the hearing, the accused's counsel on 11 August 2016 filed a notice of exception to the charge in terms of s 5 (7) (sic) of the Criminal Procedure and Evidence Act, which section she applied to amend to read s 171 at the hearing. The gravamen of the exception was that the alternative charge which the State intended to cause the accused to plead to did not disclose any cognizable offence. The indictment against the accused was worded as follows:
"Count 1 - Fraud as defined in s 136 (a) and (b) of the Criminal Law (Codification and Reform) Act. Alternatively, contravening s 302 of the Mines and Minerals Act 'ceding of assigning any rights without authority from the President of Zimbabwe'.
Count 2 - Money laundering as defined in s 8 (3) of the Money Laundering and Proceeds of Crime Act.
Count 1 - In that on the date to the Prosecutor unknown but during the period extending from July 2014 to December 2015 and at Harare, Arthur Chikukwa, unlawfully and with intent to defraud, misrepresented to Light-glass Enterprises Pvt Ltd being represented by Salim Suleman Desai that he had a Coal Mining Concession in Tuli, Matabeleland South Province held under Special Grant in the name of Rockrabbit Investments Pvt Ltd and that he had a mandate to sell the Special Grant from Rockrabbit Investments Pvt Ltd whereas in truth and actual fact when Arthur Chikukwa made the misrepresentation he well knew he had not obtained authority to sell the said Special Grant to Light-glass Enterprises Pvt Ltd. By means of his misrepresentation, Arthur Chikukwa caused Light-glass Enterprises Pvt Ltd to surrender house in Harare, Toyota Prado, a Toyota Lexus and cash amounting to US$ 125 000 all valued at
US$ 2 775 000 to the prejudice of Light-glass Enterprises Pvt Ltd.
Alternatively, contravening s 302 of the Mines and Minerals Act 'ceding or assigning any rights without authority from the President of Zimbabwe'.
In that on the date to the Prosecutor unknown but during the period extending from July 2014 to December 2015 and at Harare, Arthur Chikukwa, without lawful authority from the President of the Republic of Zimbabwe, issuer of the Special Grant and well knowing that the rights to the said Special Grant were personal to Rockrabbit Investments Pvt Ltd unlawfully ceded or assigned such right to Light-glass Enterprises Pvt Ltd represented by Salim Desai in contravening of the said Act.
Count 2 - Money Laundering as defined in s 8 (3) of the Money Laundering and Proceeds of Crime Act.
In that on the date to the Prosecutor unknown but during period extending from July 2014 to December 2015 and at Harare, Arthur Chikukwa received, possessed, concealed and disposed of property namely a Toyota Prado, Toyota Lexus, cash amounting to
US$ 125 000 and a residential property in Harare knowing or suspecting at the time of receipt of such property and that the said property is the proceeds of crime. That is to say, Arthur Chikukwa acquired used or possessed property and money mentioned in the charge knowing that at the time of receipt that such amounts of money and property were proceeds of a crime of fraud."
The defence counsel's argument was that s 302 of the Mines and Minerals Act was prohibitory only but did not criminalise the acts outlined therein. The section reads as follows:
"302 Rights under special grant personal to the grantee
The rights granted under a special grant shall be personal to the grantee, who may not cede or assign any such rights to any other person unless authorised to do so by the President".
The State purported to have created an offence out of the alleged failure by the accused to obtain Presidential consent before ceding or assigning rights to special grant which was issued to Rockrabbit Investments (Pvt) Ltd to Light-glass Enterprises (Pvt) Ltd. The defence counsel's objection was well taken. The purport of s 302 is simply to define the characteristics of a special grant and how it may be ceded or assigned. In short, a special grant remains reposed in the person to whom it has been granted by the President in terms of s 301 of the Mines and Minerals Act. The holder of a special grant who intends to cede or assign the holder's rights to it requires the permission or consent of the President to do so, otherwise the purported assignment or cession will be a nullity. It is not a criminal offence to have engaged in such nullity. State counsel properly conceded that the alternative charge was bad in law. He applied to withdraw it. A withdrawal was not the proper remedy because a nullity is not withdrawn since it is non-existent. Accordingly, the purported alternative charge was expunged from the record.
The defence counsel submitted as part of the exception dealt with above that count 1, being the fraud charge read together with its alternative, was vague and embarrassing because the fraud charge, alleged that the accused misrepresented that he had a coal concession, yet the alternative charge alleged that he acted without Presidential authority. The allegations were mutually destructive being inconsistent. The exception to the charge being vague and embarrassing was however abandoned in the light of the State's concession that the alternative charge did not ground any offence. Following the expungement of the alternative charge and the exception having been withdrawn, the court no longer had cause to deal with it any further.
Defence counsel next argued that there was an improper splitting of charges between the fraud charge and the charge of contravening s 8 (3) of the Money Laundering and Proceeds of Crime Act. Counsel's argument was that the allegations by the State were that the accused received the property the subject of the Money Laundering and Proceeds of Crime Act as part of the same or single transaction of the charge of fraud. To split the charge of fraud and the subsequent disposal of the property would in counsel's submission lead to a duplicating punishment in the event of a conviction on both accounts. She argued that, without proving fraud, the offence of money laundering would also fall away. Counsel referred to S v Grobler En 'n Ander 1966 (1) SA 507 (A) and S v Dzimuri & Ors 1997 (2) ZLR 27 (H) to support her submission that where the accused has a single intent, it would be improper to charge him with more than one offence where the same facts ground the two offences. State counsel submitted that there was no improper splitting of charges because the second offence of money laundering was grounded in criminalising the making of economic advantage out of the proceeds of the fraud. I dismissed the exception and indicated that my reasons would be handed down as part of the main judgment.
The essential elements of the offences in counts 1 and 2, that is fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act and money laundering, as defined in s 8 (3) of the Money Laundering and Proceeds of Crime Act are expressed in the respective enactments. Fraud is defined in s 136 (a) and (b) of the Criminal Law (Codification and Reform) Act as follows:
"136 Fraud
Any person who makes a misrepresentation –
(a) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and
(b) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice,
shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to –
(i) a fine not exceeding level 14 or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or
(ii) imprisonment for a period not exceeding 35 years,
or both"
The elements of fraud are therefore that:
(i) an accused must make a misrepresentation;
(ii) with intention to deceive or with realisation which is real and not fanciful that the other person might be deceived by the misrepresentation;
(iii) the accused must intend that the misrepresentation be acted upon or he must realise the risk or possibility that the other person may act upon the misrepresentation to his prejudice.
Money laundering charged in count 2 is defined in s 8 (3) of the Money Laundering and Proceeds of Crime Act as follows:
"8 Money laundering offences
(1) ...
(2) ...
(3) Any person who acquires, uses or possesses property knowing or suspecting at the time of receipt that such property is the proceeds of crime, commits an offence..."
The essential elements of an offence under s 8 (3) of the Money Laundering and Proceeds of Crime Act as quoted above are that the accused must –
(i) acquire, use or possess property; and
(ii) do so in the knowledge or under a suspicion as at the date he takes receipt of that property that the property is the proceeds of crime.
"Proceeds of crime" is defined in the definition section thus:
"'proceeds' and 'proceeds of crime' means any property or economic advantage derived from or obtained directly or indirectly through the commission of a criminal offence, including economic gains from the property and property converted or transformed, in full or in part, into other property;"
It is also necessary to consider the provisions of s 145 of the Criminal Procedure and Evidence Act. The section reads as follows:
"145 Where doubtful what offence has been committed
If, by reason of the nature of an act or series of acts, or of any uncertainty as to the facts which can be proved, or if for any other reason whatever it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with having committed all or any of those offences, and any number of such charges may be tried at one time, or the accused may be charged in the alternative with having committed some or one of those offences."
Also, relevant to consider in disposing of the defence exception is s 8 (6) of the Money Laundering and Proceeds of Crime Act. It provides as follows:
"(6) In order to prove that property is the proceeds of crime, it is not necessary for there to be a conviction for the offence that has generated the proceeds, or for there be a showing of a specific offence rather than some kind of criminal activity, or that a particular person committed the offence."
In amplification of her objection, defence counsel submitted that the court should in determining the exception consider the nature of the criminal acts alleged against the accused and whether the same facts will establish both charges. She argued that if the same evidence will ground both charges, then there would be a splitting of charges leading to duplication of punishment. The defence counsel further submitted that count 2 on money laundering depended on proof of fraud. She submitted that if fraud was not proved, then the accused would be free to deal with the property as he chooses. If, however, the property was tainted then it would constitute proceeds of crime. I understood counsel's argument therefore to be that the one charge could not exist outside of the other one.
In my judgment, s 145 of the Criminal Procedure and Evidence Act has largely diluted the scope of the exception which an accused can take based on an alleged splitting of charges. The section allows great latitude to the State to charge various offences whether separately or in the alternative arising from one act or series of acts or where facts are uncertain as to what charge exactly to put to the accused in the indictment. Without stating authoritatively that this is so, it appears to me that the objection to a splitting of charges may well have become academic in view of the provisions of s 145 aforesaid. The objection or exception is not one which comes often before the courts anymore. I note that the equivalent provision exists in the South African Criminal Procedure Act 51 of 1977. It reads as follows:
"83 Charge where it is doubtful what offence committed
If by reason of any uncertainty as to the facts which can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences."
I have quoted the South African equivalent of our s 145 because a reading of South African authorities which presented themselves as more in numbers than locally decided cases are persuasive on account of the provisions of the law being similar in both jurisdictions.
The traditional test for determining whether there has been an improper splitting of charges it to the following effect:
(a) where an accused commits two acts of which each standing alone would ground a criminal charge but does so with a single intent, both acts being necessary to carry out that intent, then the proper approach would be to indict the person for one offence because the two acts in fact constitute one criminal transaction; or
(b) whether the evidence necessary to ground or prove one of the charges will also support the other charge, the offences can be said to be same in substance.
See R v Sabuyi 1905 TS 170; R v Gordon 1909 EDC 254; R v Molloy [1921] 2 KB 364; R v Disney [1933] All ER Rep 626; S v Ndou & Ors 1971 (1) SA 668 (A) and cases quoted by the defence counsel.
Locally, instructive cases include this Court's decisions in S v Zacharia 2002 (1) ZLR 48 (H); R v Peterson & Ors 1970 (1) RLR 49 (G); S v Chinemo 1985 (1) ZLR 32 (H). In S v Jambani 1982 (2) ZLR 213 (H), this Court ruled that where the facts of a case disclose two stand-alone crimes, the State should charge the offences which constitute the dominant intent of the accused when he engaged in that conduct. This is not without its difficulties, because at the stage of putting an indictment to an accused, it might be difficult before evidence has been led to decide or conclude on what his dominant intention is, especially where for example the accused is not admitting to the offence. The accused may also change his dominant intention in the course of committing the offence. The State could also consider charging the more serious of the offences. Whilst s 145 of the Criminal Procedure and Evidence Act could be said to be applicable in cases where there is doubt as to what offence has been committed, it appears to me that the crux of the provision is to cater for a situation where the facts will be revealing several crimes. It may well be placing an unfair duty on the State to determine an accused's dominant intent prior to putting a charge to him. It does appear to me to be a burden which should properly be determined by a court and even then, after evidence has been led. To ask or expect the State to determine what an accused's dominant intention is may arguably be to place a judicial burden on the prosecution.
The authorities' state that the rule is intended to protect the accused from being unduly prejudiced due to a multiplicity of convictions arising from one continuous conduct in that the accused would then have to be sentenced on each charge. In practice, as suggested by Professor G Feltoe Criminal Defender's Handbook (Revised edition, Legal Resources Foundation, Harare, 2008) at page 70, the prejudice is cured by taking all counts as one for purposes of sentence.
In my understanding, the test for determining if there has been a splitting of charges is not a rule of law but of logic and common sense. The facts of each case must be considered on their merits in order to achieve fairness towards the accused - see S v Mampa 1985 (4) SA 633 (C) at 635; R v Kuzwayo 1960 (1) SA 340 (A) and R v Johannes 1925 TPD 782. The application of the practice and tests should not, in my judgment, lead to fettering the authority of the Prosecutor-General to bring to court against the accused the charges which, on the evidence available to him or her, an accused should answer to.
Lastly, with respect to the present case, the defence argument also hits a brick wall when one considers the provisions of s 8 (6) of the Money Laundering and Proceeds of Crime Act. As will be noted from a reading of the provisions, it is not necessary in proving the charge of money laundering to first prove the commission of the offence giving rise to or generating proceeds of crime. It is also not a requirement that a particular person did commit the offence which generated the proceeds of crime. The section requires proof that the proceeds of crime came by the accused as a result of "some kind of criminal activity". It follows that the elements of the two offences are different, though evidence here and there might dovetail. It was for the above reasons that I dismissed the exception.
[The remainder of the judgment is not material to this report. - Editor.]
National Prosecuting Authority, State's legal practitioners
Majoko & Majoko, accused's legal practitioners
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