MAKONESE J: 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 and sentenced to 24 months imprisonment of which 6
months were suspended for five (5) years on the usual conditions.
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 summarised 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 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$300,00 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 2:30 pm. 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, 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. 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 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 page 659, 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) at page 809 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 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
inconstant 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.
As regards sentence, there is no
misdirection on the part of the magistrate regarding his approach to
sentence. The appellant was a public prosecutor in the Regional
Court. He solicited for a bribe from a complainant who had approached
the court to seek justice. An officer of the court who engages in
criminal conduct puts the entire justice system into disrepute.
Sentencing the appellant to any sentence other than a term of
imprisonment would, in my view, have been wholly inappropriate.
In the result, the appeal against
conviction and sentence is dismissed.
Kamocha J ……………………………… I agree
