MAKARAU JA
At the hearing of the above
appeal, despite having been duly served with a notice setting the
matter down, there was no appearance on behalf of the respondent. The
appellant successfully applied that the respondent be held to be in
default and duly barred but that the matter be determined on its
merits.
After hearing submissions from
counsel, we, on the turn, dismissed the appeal in its entirety and
gave brief reasons in an ex tempore judgment that was read out in
court. We have been requested to furnish the full reasons for the
judgment and these they are.
This is an appeal against the
judgment of the High Court, handed down on 10 May 2017, upholding the
conviction and sentence imposed upon the appellant by the magistrates
court.
The appellant was charged with
one count of bribery as defined under section 170(1) of the Criminal
Law (Codification and Reform Act) [Chapter 9.23]. It was alleged that
on 3 April 2014, in Guruve, the appellant unlawfully received a sum
of money as a bribe from one Biggie Chipfunde in order for him to
influence certain court process that was before the court in favour
of Biggie Chipfunde. The appellant denied the allegations. In his
defence outline he admitted receiving some money from Biggie
Chipfunde, but genuinely believing that this was a donation towards
his fund raising campaign to procure a map of the Guruve policing
area.
After trial, the appellant was
convicted and sentenced to 12 months imprisonment of which 4 months
was suspended on condition of good behaviour. Dissatisfied with both
the conviction and the sentence, he appealed to the High Court.
Before the High Court he raised
five grounds of appeal against his conviction as follows, and I quote
these verbatim:
1. The learned magistrate erred
in ignoring the glaring inconsistencies that were exhibited by the
State witnesses that created doubt within the State's case.
2. The learned magistrate erred
in failing to uphold and apply the basic principles of criminal law
that the State must prove its case beyond any reasonable doubt.
3. The court a quo misdirected
itself in failing to realise that there was no trap given that the
State failed to produce the application for trap as required by the
law.
4. The court a quo erred in
failing to realise that there were gross violations of the police
standing orders which were 7.0 of the ZRP Police Standing Order
Manual Volume 1, pp334; 27.1-4 of the ZRP Standing Order Volume 1,
Manual, pp131.
5. The court a quo also failed to
consider that the defendant's case stood by its defence outline and
its evidence strongly reflected that there was no offence committed
at all.
Against sentence, the appellant
also raised five grounds, attacking the severity of the sentence and
the exercise of the discretion of the trial court in imposing a
custodial sentence in the matter.
As stated above, the court a quo,
finding no merit in all the grounds of appeal, dismissed the appeal
in its entirety, prompting the appellant to note this appeal.
Before this Court, the appellant
raised 5 grounds of appeal against conviction and two against
sentence.
At the hearing of the appeal,
counsel for the appellant quite properly abandoned grounds of appeal
3, 4 and 5 against conviction and ground 2 against sentence. This
left grounds 1 and 2 relating to the conviction and ground 1 relating
to the sentence.
Against conviction, the remaining
grounds of appeal were as follows:
1. The court a quo erred on a
point of law by relying on section 170(2) of the Criminal Law
(Codification and Reform) Act [Chapter 9.23] which casts a reverse
onus on the appellant to prove his innocence, to dismiss the appeal
against conviction.
The section breaches section
70(1)(a) of the Constitution which guarantees the appellant the right
to be presumed innocent until proven guilty beyond a reasonable doubt
by the State.
2. The lower court erred on a
point of law by upholding a conviction which relied on section 170(2)
of the Criminal Law (Codification and Reform) Act, an
unconstitutional provision which breaches an accused's right to
remain silent and not to be compelled to give self-incriminating
evidence.
In relation to both grounds,
counsel for the appellant conceded that the unconstitutionality of
section 170(2) of the Criminal Law (Codification and Reform) Act was
not an issue before both the trial court and the court a quo. His
concession in this regard was properly made. The record confirms this
to be the position.
More importantly, it is clear
from the record that the provisions of the section were not invoked
and relied upon by the trial court in convicting the appellant.
Rather, the trial court found that the evidence that had been led
from the State witnesses against the appellant was overwhelming and
that the State had duly established its case beyond a reasonable
doubt. At no stage in its determination of the guilt of the appellant
did the trial court advert to the reverse onus imposed on the
appellant by the section.
It was the finding of the trial
court that the evidence of the State witnesses against the appellant
went largely unchallenged as the appellant focused on challenging his
entrapment, alleging that the proper procedures of setting up the
trap had not been followed. The defence thus failed to put in issue
the essential evidence led on behalf of the State, so found the trial
court.
It is also clear from the record
that the court a quo upheld the conviction of the appellant by the
trial court without relying on this provision. In its determination
of the appeal, the court a quo, and correctly so, did not find a
basis for interfering with the factual findings that were made by the
trial court.
Regarding the trap, the court was
of the view that the appellant's case was not one where it could be
said that, but for the trap, the accused would not have committed the
offence. It thus confirmed the finding by the trial court that there
was other evidence apart from the trap that proved beyond a
reasonable doubt that the appellant had committed the offence. It was
during a discussion of the trial court's treatment of the evidence
led by the State on how the appellant solicited the bribe that the
court a quo made the following remarks:
“The evidence shows that it was
the appellant who solicited the bribe. The learned magistrate
demonstrated the length to which the appellant went in order to make
sure that he personally received the money from the complainant. See
S v Fisher 1971(1) SA 745 (RAD); S v Katsande 1983 (1) ZLR 302. There
is in my view no basis to interfere with the conviction by the
magistrate as it is proper. The appellant in any event failed to
discharge the reverse onus set out in section 170(2) above. Once he
accepted that he received money from the suspect in a matter pending
at the police station, he had to discharge the onus cast by the
presumption created in the State's favour that he had received the
money in contravention of the provisions of section 170. This the
magistrate correctly found he failed to do,” (The under lining is
mine).
It is clear from a reading of the
record that the remarks by the court a quo were made mero motu and
were not based on any submissions that had been made for and on
behalf of the respondent before that court. Secondly, the remarks
were incorrect as far as they purported to confirm a position that
the trial court had taken on the matter. The trial court did not make
any finding on the reverse onus that is created by section 170(2).
Finally, and more importantly,
the remarks by the court a quo on section 170 (2) were made after the
court had concluded that the conviction of the appellant was proper
on the basis of the weight of the evidence that the State had led
against him. Thus, the ratio decidendi of the court a quo was its
finding that it could not interfere with the factual findings of the
trial court, which findings were that the State had led overwhelming
evidence against the appellant.
It is our finding that the
remarks constitute an orbiter dictum and had no effect on the court's
ratio decidendi. Being such, the remarks cannot form the basis of an
appeal. This is the trite position at law. An appeal lies against the
decision of the court. It does not lie against statements or remarks
made by the court during the determination of the matter and which
statements and remarks do not form the ratio of the judgment.
Accordingly, we took the view
that there were no proper grounds of appeal before us against the
conviction of the appellant.
In the result, all the grounds of
appeal against conviction having been either abandoned or raised
improperly, the appeal against conviction could not succeed.
Against the sentence, the
appellant raised a single ground of appeal as follows:
“It is submitted that the
Honourable Judge erred and misdirected himself by upholding the
sentence by the court a quo despite the fact that there were cogent
reasons which indicate the contrary. Appellant is a first offender,
did not realise that he was committing an offence and a non-
custodial sentence would have been imposed to meet the justice of the
case and the rehabilitation and reformation principle of sentencing
were not considered.”
Before us, the appellant was
unable to identify any misdirection on the part of the court a quo in
affirming the reasons for sentence by the trial court. It was not for
the court a quo to reassess the appropriate sentence in the matter as
the ground of appeal suggests. The court a quo correctly determined
the matter on the basis of whether or not there was a misdirection on
the part of the trial court in assessing sentence. It found no such
misdirection.
The court a quo was persuaded, as
was the trial court, that because the appellant was a police officer,
in the absence of cogent reasons to the contrary, a custodial
sentence was appropriate. In this regard both courts relied on the
case of AG v Bryan Johnson and Another SC 119/98, where Gubbay CJ had
this to say:
“….where corruption is
resorted to, especially where the offender is a police officer, agent
of the State, a custodial punishment is called for unless there are
cogent reasons which indicate the contrary.”
Accordingly, the appeal against
sentence also failed.
It is on the basis of the above
that, on the turn, we dismissed the above appeal in its entirety.
HLATSHWAYO JA: I agree
PATEL JA: I agree
Ngwerume Attorneys at Law appellant's legal practitioners
National Prosecuting Authority, respondent's legal practitioners
