This is an appeal against
conviction.
On
the 14th June 2010 we upheld this appeal after hearing submissions by both
counsel and promised to avail reasons later. These are our reasons.
The
appellant was charged with contravening section 34 of the Schedule to the
Police Act [Chapter 11:10] as read with section 29(2)(b)(ii) of the Police Act
[Chapter 11:10]. Allegations against him are that on the 16th July 2006 while
on duty at Bulawayo Central Police Station he received a report of fraud. The
accused in question, who had been arrested, was found in possession of Z$125,000,000=.
The appellant ordered the detention of the accused but it is alleged that he
failed to order that the money should be recorded as an exhibit. As a result of
his failure to issue the said order, the money was handed over to the accused's
relatives. The accused was being held for having defrauded the complainant in
the sum of P3,000=.
According
to the evidence led, there is no indication that the appellant instructed his
subordinates to release the money to the suspect. This is clearly stated by
Tendai Liberty Dhlakama whose testimony in court is that the appellant told him
that it was not proper for the recovered money to be booked as an exhibit but
should be booked as prisoner's property since it had not been proved that the
suspect was the actual perpetrator of the fraud.
The
appellant is accused of either neglecting or omitting his duty by failing to
order the booking of the money found in the suspect's possession as an exhibit.
Evidence
presented before the court a quo is that he directed that it be booked as
prisoner's property. His reason for
doing so, is that he was of the opinion that there was no nexus between the
stolen P3,000= and the $125,000,000= found on the accused's possession.
Negligence
is failing to act like a reasonable man. In civil cases for one to be liable, the
plaintiff should prove, on a balance of probabilities, that indeed the accused
party was indeed culpable. In casu, the appellant's negligence or omission is
of a criminal nature which requires proof beyond reasonable doubt.
The
issue is whether the accused's failure to order that the recovered money be
booked as an exhibit passes for criminal negligence. To determine this question
it is important to examine the circumstances and practice of police operations.
It
is clear that it is accepted practice that a Duty Inspector can decide not only
to detain a suspect but also to either book property found in the accused's
possession either as an exhibit or prisoner's property. If, for example, a
suspect is found in possession of a knife immediately after a victim has been
stabbed, there will be every reason for the knife to be recovered and booked as
an exhibit. Such weapon cannot reasonably be booked as a prisoner's property as
it is directly linked to the crime.
The
position obtaining in casu is that the money stolen was Botswana
currency yet the suspect was found in possession of local currency. I find that
there was no nexus whatsoever, save to speculate that the suspect could have
converted it to local currency. Unfortunately, that is, but, all one can say.
In my opinion, one cannot be said to be negligent if he acted in accordance
with a practice accepted as proper in circumstances and where he properly used
his discretion. The fact that someone else, or his employer for that matter,
could have acted differently, is not enough reason to hold him negligent. It
appears that a Duty Inspector can use his discretion in deciding which property
should be recorded as either exhibit or prisoner's property.
As
this accused is facing criminal negligence, it is necessary to examine whether
he took any precaution required of his duty in the circumstances.
When
being advised of the recovered money, he did not order that it be returned to
the suspect but directed that it be booked as prisoner's property. That action
to me totally eliminates both negligence and omission. It is common practice
for a suspect's property to be booked either as prisoner's property or exhibit.
The accused had not been charged as investigations were still in progress.
These
courts are reluctant to interfere with an administrative discretion unless it
can be proved that it had not been judiciously exercised - which is not the
case in casu.
In
my view, in order for one to be convicted of this type of negligence, the State
must prove either of the following:
(1)
That what he did was something that another person in his position could not
have done in the circumstances, or
(2)
To show that it was a practice which was so obviously clear that it would be
folly for anyone to have neglected or omitted to do.
This
principle was clearly laid down in the most persuasive case of Morton v William
Dixo, Ltd. LORD DUNEDIN (Lord President) (1909 S.C. 809) referred to in Barkway
v South Wales Transport (1950) 1 ALL ER 392.
I
entertain the greatest doubt that the appellant acted in a negligent manner or
omitted his duty in the circumstances.
The conviction was not proper and accordingly
the appeal succeeds.
