The
appellant in this matter was a public prosecutor at the relevant
time. On the 18th
December 2014 he was convicted by a magistrate sitting at Western
Commonage Magistrates' Court at Bulawayo on a charge of
contravening section 174(1) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23], that is, criminal abuse of duty as a
public officer…,.
The
appellant was dissatisfied with the outcome of the trial and noted an
appeal against both conviction and sentence. His grounds of appeal
are as follows:-
1.
The trial court erred and misdirected itself in concluding that the
State had proved its case beyond a reasonable doubt.
2.
The learned magistrate erred and misdirected himself by convicting
the appellant when the State failed to disprove the appellant's
defence.
3.
The learned magistrate erred and misdirected himself by ignoring the
entry that the appellant had entered in the docket indicating that he
was recusing himself from dealing with the matter.
4.
The trial court erred and misdirected himself by rejecting and
concluding that the appellant's Defence Outline was inconsistent
with the evidence in chief.
5.
The sentence imposed was so severe as to induce a sense of shock.
In
his response to the Notice of Appeal, the trial magistrate had this
to say:
“This
is an appeal that was lodged just for the sake of it. There was
overwhelming evidence that the appellant not only solicited for
$300=, but also received it, albeit unknown to him that he was being
trapped! I cannot understand how the appellant says his defence
remained unchallenged. The good thing is that our courts are courts
of record and so the evidence is there for the Appeal Court to see.
As
for the sentence, if the sentence imposed can be held to induce a
sense of shock in the circumstances, then that phrase 'sense of
shock' has lost its meaning. In fact, I foresee a situation where
the Appeal Court will hold the sentence I imposed to be overly
lenient.”
On
3 March 2015, the appellant filed an amended notice of appeal wherein
he effectively sought to expunge his initial grounds of appeal by
substituting it with fresh grounds of appeal. In the amended notice
of appeal, the thrust of the grounds of appeal is as follows:
1.
The conviction of the appellant, on the basis of a trap orchestrated
by the State, through the police, constitutes a violation of the
appellant's constitutional right to lawful, efficient, reasonable,
proportionate, impartial and both substantively and procedurally fair
administrative conduct enshrined in section 68(1) of the Constitution
of Zimbabwe.
2.
The conviction of the appellant, on the basis of evidence obtained by
means of a trap orchestrated by the State, through the police,
constitutes a violation of the appellant's constitutional right as
enshrined in section 70(3) of the Constitution of Zimbabwe.
3.
The court a
quo
erred in convicting the appellant when the State had failed to
discharge the onus on it to prove all the essential elements of the
offence of criminal abuse of duty as a public officer beyond
reasonable doubt as required in section 18(1) of the Code.
4.
The court a
quo
ought to have considered the imposition of community service as
required by law.
The
appellant's counsel filed quite detailed and extensive heads of
argument. The issues raised by the appellant are as follows:
1.
Whether the practice of trapping by the police, in the administration
of criminal justice, is constitutional.
2.
Whether the admission of evidence obtained through trapping by the
police is constitutional.
3.
Whether there were inconsistencies between the appellant's Defence
Outline and his oral evidence in court.
4.
Whether the imposition of a custodial sentence, without first
considering the alternative of community service, was proper.
5.
Whether the imposition of a custodial sentence when the Code
prescribes the alternative sentence of a fine was proper.
Factual
Background
The
allegations against the appellant are summarized in the State
Outline. The facts are largely common cause. The appellant was, at
the material time, a Regional Public Prosecutor based at Tredgold
Building, Bulawayo. On the 17th
November 2014 the appellant solicited for a bribe of US$300= from one
Nicholas Masuku (the complainant). The bribe was for the purposes of
ensuring that the complainant's fraud case, pending at Tredgold,
could be set down for trial. CID details were tipped of the impending
handing over of the US$300= to the appellant. A trap was arranged and
the money that was being handed over to the appellant had its serial
numbers marked. Upon the handing over of the money to the appellant,
CID details swooped upon the appellant who had placed the money under
his mobile phone on his office desk. The appellant explained to the
arresting details that the money was a refund for the purchase of a
Stand.
It
is common cause that the complainant had reported a case of fraud
against one Alfonse Achinulo. It is also common cause that on or
about 13 November 2014 the appellant summoned the complainant to his
office at Tredgold for a discussion. It is necessary, for the purpose
of this appeal, to quote from the record the complainant's evidence
during the trial on this aspect. At page 32 of the record, the
complainant states as follows:
“On
13 November 2014, I was at Esigodini on business. My PA phoned me.
She is Thembeka Dube. She said I was required at court by the
accused. I asked my PA to book the accused for 2:30pm. However,
things did not happen as I had planned and so I only got to accused's
office at Tredgold at 3:30pm. Accused asked my PA to wait outside so
that we remained being two in accused's office. Accused said he had
discussed my case with his superior. I was the complainant in that
case and the accused in the case was Alfonse Achinulo. The case was a
fraud case that I had reported against Alfonso Achinulo…,.
He
said the superior was coming from Gokwe and that he (the superior)
wanted to go back to Gokwe that Friday. Accused said that therefore
the superior needed something. I asked what that something was and he
said it was money. I asked how much money was required and accused
said my case appeared to be a serious one. I said it was well and I
was going to look into that. Accused said his boss wanted to leave by
10:00 am the following day.”
On
the 17th
November 2014, after discussing the matter with one Superintendent
Ncube, the complainant phoned the appellant enquiring on how much
exactly was required to facilitate the set down of his case. The
appellant informed the complainant that an amount of US$300= was
needed. The money was subsequently handed to the appellant leading to
the arrest of the appellant.
It
is on these facts, that the appellant now argues that his conviction
was on the basis of a trap orchestrated by the State through the
police. The appellant contends that the conviction based on evidence
obtained by means of a trap violates his constitutional rights as
enshrined under section 70(3) of the Constitution.
I
will now proceed to deal with each of the grounds of appeal as
amplified in the appellant's heads of argument. Before I do so,
however, I must dispose of one important factual issue.
A
proper reading of the record of proceedings in the court a quo
reflects that the appellant solicited the bribe to enable him to
facilitate set down of a matter. The appellant initiated the entire
process that led to his arrest. At first he did not mention the
amount of money that he said was required by his superior. When asked
to give a figure, the appellant stated that US$300= was needed. The
money was then handed to the appellant who received it. The police
effected the arrest and recovered the money from the appellant.
This
is not a 'trap' in the strict sense of the word.
The
appellant was already committing a crime when he solicited for a
bribe. His conduct was in contravention of section 174(1) of the
Criminal Law (Codification and Reform) Act. The section provides as
follows:
“(1)
If a public officer, in the exercise of his or her functions as such,
intentionally –
(a)
Does anything that is contrary or inconsistent with his or her duty
as a public officer; or
(c)
Omits to do anything which it is her duty as a public officer to do;
for the purpose of showing favour or disfavor to any person, he or
she shall be guilty of criminal abuse of duty as a public officer and
liable to a fine not exceeding level thirteen or imprisonment for a
period not exceeding fifteen years or both.”
The
appellant had clearly set into motion a process where he was to
receive a bribe of US$300= on the pretext that his superior had
demanded it. The payment of the bribe was to facilitate the set down
of a trial date. The complainant alerted the police for the purpose
of effecting an arrest. Even assuming that the appellant had not
received the bribe money, his conduct of soliciting for a bribe was
in contravention of section 174(1) of the Criminal Law (Codification
and Reform) Act.
It
has been argued by the appellant that the police orchestrated a trap.
GARDNER
& LANSDOM, South
African Criminal Law & Procedure
Vol 1, 6th
Edition…, define a 'trap' as:
“A
person who, with a view of securing a conviction of another, proposes
certain criminal conduct to him, and ostensibly takes part therein.
In other words, he created the occasion for someone else to commit
the offence.”
In
Musuna
v The State
HB112-07, BERE J dealt with a similar situation where the facts are
strikingly similar to the present matter. The accused,
a police officer, had solicited for a bribe from a Congolese national
who reported the matter to the police and a trap was set. The learned
judge distinguished the types of police traps and held that evidence
from a trap could only be unlawful or inadmissible if the trap was
intended for the express purpose of inducing an accused to commit a
crime he would ordinarily not have committed.
See
also the case of S
v Azov
1974 (1) SA 808 (T)…, where the judge observed the following:
“This
court is not concerned with the approach on traps, whether it is a
procedure that is to be lauded or disapproved of. The fact is that it
is not unlawful to have set the trap; not do I accept the proposition
that traps must necessarily be treated in the manner that has been
suggested in the appellant's heads of argument. It seems to me that
traps are really of three kinds.
There
is the trap which most of us dislike so much where a traffic
inspector puts a cord across the road and when you go over it too
fast he traps you. There, the traffic inspector has done nothing
really to entice you to exceed the speed limit; he is merely set
about trapping you…,. There is no reason why a trap of that kind
should be treated with the disapproval which is suggested in general
about traps.
Secondly,
we have the sort of trap that we have where the accused person is not
enticed into doing something wrong. She is suspected of selling
liquor and she has liquor in her possession. All the trap does is to
go and buy it from her. He did not place the liquor in her possession
and he did not induce or entice her to keep liquor illegally; all he
did was to trap her into selling it. This is the second type of
trapping.
Then,
the third type of trap that you have in gold and diamond trapping
cases where you bring the gold or diamonds to the person and invite
him to buy it. That sort of trap is very dangerous and open to abuse,
and the courts have on numerous occasions expressed their disapproval
of it, more particularly because the traps used in such case are
often persons of low repute, not necessarily police officers.
The
distinction must be drawn and borne in mind.
In
the present, this woman was not enticed or induced to start trading
in liquor; she was suspected, presumably on reasonable grounds, of
trading in liquor and all that was done was to go and by some beer
from her – to trap her in that fashion. The police used three
policeman to trap her and whilst all evidence produced before a court
of law must be treated with caution and care must be exercised in
evaluating it, there is no particular reason why these three
policemen should be treated as if they were villain or doing
something unlawful.”
On
the facts of the present case, the police obtained information that
the appellant had demanded a bribe - which in itself is unlawful. The
police then moved in to arrest the appellant after he had received
the money. He gave a false reason for being in possession of the
money. He alleged, soon after his arrest, that the money was a refund
for the purchase of a Stand. That was his initial defence. This is
not an insignificant issue because in this appeal the appellant is
arguing that he was trapped and that the setting up of the trap
violated his constitutional rights. In his lengthy Defence Outline,
the appellant denied that he ever solicited or received any money
from the complainant under any circumstances. This seems to give
credence to the position that the raising of the constitutionality of
the trap came as an afterthought.
I
now turn to consider whether there is merit in the argument that the
conduct of the police was inconsistant with section 68(1) of the
Constitution. The relevant section provides that:
“(1)
Every person has a right to administrative conduct that is lawful,
prompt, efficient, reasonable, proportionate, impartial and both
substantively and procedurally fair.”
Further,
section 70(3) of the Constitution provides as follows:
“(3)
In any criminal trial, evidence that has been obtained in a manner
that violates any provision of this Chapter must be excluded if the
admission of the evidence would render the trial unfair one would
otherwise be determined to the administration of justice or the
public interest.”
I
have no doubt in my mind that the constitutional issues raised by the
appellant were merely raised as a red herring. A basic tenant of
Constitutional Law is that not all rights are absolute but their
restriction has to be proportionate to the means that it seeks to
achieve. The detection of crime, more particularly corrupt practices,
must be achieved not by luring suspects into committing offences but
setting up of lawful traps that only serve to prove that a crime has
indeed been committed. I am of the view that the constitutional
issues raised are of no moment and that they are being raised merely
to obfuscate the issues. There is no evidence on record that the
police orchestrated the trap or initiated it.
