Criminal Appeal
HUNGWE J: The appellant
was convicted of bribery as defined in section 170(1) of the Criminal
Law (Codification and Reform) Act, [Chapter 9:23]. He was sentenced
to 12 months imprisonment of which 4 months imprisonment was
suspended for five years on condition of good behaviour. He appeals
to this court against both conviction and sentence. In his notice
and grounds of appeal the appellant advances five grounds of appeal.
In the first ground it is averred
that the court a quo erred in ignoring the glaring inconsistencies in
the State witnesses' evidence which created doubt in the State
case.
In the second ground, it is
claimed that the State failed to prove its case beyond a reasonable
doubt.
The third ground bemoaned that
failure to prove that there was no formal approval for a police trap
which was employed to arrest the appellant.
The fourth ground criticised the
alleged gross violations of police standing orders contained in the
Standing Order Volume 1 Manual.
The final ground was that the
court a quo failed to consider that the appellant's case was highly
probable and therefore showed that no offence was committed.
The remaining five grounds
attacked the propriety of imposing a custodial sentence on the
appellant who was a first offender.
The first ground of appeal
attacks the factual findings by the court a quo in respect of
credibility.
In a well-reasoned judgment by
the learned trial magistrate, the following findings of fact were
made. The appellant was a police officer at Guruve Police Station.
The informant Biggie Chipfunde had a case pending at the local court.
There was an exchange of money from Biggie Chipfunde to the
appellant. The appellant denies that this was a bribe handed over at
his behest in order to make the matter in which Biggie Chipfunde was
a suspect at his police station go away. Biggie Chipfunde alleged
that the payment was in response to persistent demands for a bribe by
the police officer when he had been implicated in a criminal matter
reported at the police station.
The magistrate preferred the
evidence given by State witnesses to that given by the appellant as
to the real purpose of the payment which was recovered in a police
trap sting operation. There were minor inconsistencies which the
magistrate ably dealt with and undoubtedly was aware of during trial.
The police team details who set the trap in which previously recorded
bank notes were given to the informant were subsequently recovered
from the appellant upon his arrest were produced during the trial.
I am unable to fault these
factual findings by the court a quo. In any event the question to ask
on a full appreciation of the facts found prove is whether in their
totality the State has proved the essential elements which make up
the offence of bribery as defined in the Criminal Law Code. That
section provides:
“170
Bribery
(1) Any:-
(a) agent who obtains or agrees
to obtain or solicits or agrees to accept for himself or herself or
any other person any gift or consideration as an inducement or
reward:-
(i) for doing or omitting to do,
or having done or omitted to do, any act in relation to his or her
principal's affairs or business; or
(ii) for showing or not showing,
or having shown or not shown, any favour or disfavour to any person
or thing in relation to his or her principal's affairs or business;
knowing or realising that there is a real risk or possibility that
such gift or consideration is not due to him or her in terms of any
agreement or arrangement between himself or herself and his or her
principal; or
(b) person who, for himself or
herself or any other person, gives or agrees to give or offers to an
agent any gift or consideration as an inducement or reward:-
(i) for doing or omitting to do,
or having done or omitted to do, any act in relation to his or her
principal's affairs or business; or
(ii) for showing or not showing,
or having shown or not shown, any favour or disfavour to any person
or thing in relation to his or her principal's affairs or business;
knowing or realising that there is a real risk or possibility that
such gift or consideration is not due to the agent in terms of any
agreement or arrangement between the agent and his or her principal;
shall be guilty of bribery and liable to:-
A. a fine not exceeding level
fourteen or not exceeding three times the value of any consideration
obtained or given in the course of the crime, whichever is the
greater; or
B. imprisonment for a period not
exceeding twenty years; or both.
(2) If it is proved, in any
prosecution for bribery, that:-
(a) an agent has obtained, agreed
to obtain or solicited any gift or consideration, whether for himself
or herself or for another person; or
(b) any person has given, agreed
to give or offered any gift or consideration:-
(i) to an agent, whether for
himself or herself or for another person; or
(ii) to any other person, after
agreeing with an agent to do so; it shall be presumed, unless the
contrary is proved, that he or she did so in contravention of this
section.
[Section amended by section 31 of
Act 9 of 2006.] “
The first ground fails for the
above reasons.
The second ground is a nullity as
it does not comply with the requirements of the Rules. (See Rule
22(1) of Supreme Court (Magistrate Court) Criminal Appeals Rules,
1979).
The remaining three grounds of
appeal relate to the defective trap set by the arresting police
details. Whilst the absence of the authority to trap the accused
may be a cause for concern, the overall impression given by the
evidence exclude any perception of impropriety on the part of the
State witnesses who went about the process of investigating the
validity of the complaint by a suspect that the police officer
involved was demanding a bribe.
The Police General Headquarters
gave the green light to the investigating detail to entrap the
appellant so as to test the credibility of allegations raised by the
complaint. Indeed the appellant received the money from a suspect who
was under investigation by the same police station where the
appellant held a senior rank.
The courts have long recognised
and distinguished between trapping which is acceptable and trapping
which is not. For example if the trapping was such that it promoted
the commission of the offence by someone who would not otherwise have
committed it, that would have required a stricter approach to the
evidence of entrapment. This is not a case where it could be said
that bit for the trap, the appellant would not have committed the
offence. 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 (RA);
S v Kamtande 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
provision of section 170. This the magistrate correctly found, he
failed to do. In the event the appeal against conviction fails.
As for the appeal against
sentence, the learned trial magistrate cited the case of
Attorney-General v Bryan-Johnsen and Patrick Maganja SC 119/98 as
authority for the proposition that where the offender is a police
officer or an agent of the State, a custodial punishment is called
for unless there are cogent reasons which indicate the contrary.
The appellant's counsel had no
answer to cited authority. I am similarly persuaded. The appellant
deserved what he got as punishment. As such the appeal against
sentence similarly fails. Accordingly the appeal is dismissed in its
entirety.
MWAYERA J agrees………………………….
National Prosecuting Authority, legal practitioners for the State
Hamunakwadi, Nyandoro & Nyambuya, legal practitioners for the
appellant
