Criminal
Review
MAFUSIRE
J:
This
matter came up for review via referral by the Regional Magistrate in
terms of section 58(3)(b) of the Magistrates Court Act [Cap
7:10].
On
scrutiny, the Regional Magistrate declined to confirm the proceedings
of the trial court. He felt that they were not in accordance with
real and substantial justice.
The
accused was charged with theft (of trust property) as defined in
section 113(2)(d) of the Criminal Law (Codification and Reform) Act,
[Cap
9:23]
(“the
criminal code”).
He
pleaded guilty and was convicted.
He
was sentenced to six months imprisonment of which five months were
suspended for five years on the usual condition of good behaviour.
The remaining one month was suspended on condition of restitution.
On
scrutiny the Regional Magistrate asked the trial court whether it had
been proper to convict the accused on a plea of guilty in spite of
his allegation that he had left the property (a push cart) outside
the house from where it had subsequently been stolen. The Regional
Magistrate also enquired whether the accused's plea of guilty
should not have been altered to one of not guilty so that a full
trial would have been conducted. He further enquired whether gross
negligence on the part of the accused had sufficed as the form of
intent required on a conviction of theft of trust property.
In
reply, the trial magistrate said the accused had failed to account
for the property; that he had left it outside knowing full well that
it would be stolen and that such conduct amounted to dolus
“eventually” (sic). He also said that the accused's admission
convinced the court that he had the requisite mens
rea.
The trial magistrate argued that the accused's circumstances were
clearly different from those of a person whose property had
unfortunately been stolen. He concluded by saying that probably the
reference to “gross negligence” could have created the impression
of a lack of intent but that ultimately the accused's conduct was
deliberately carried out with a reasonable realisation that the
property would be stolen.
Not
having been satisfied with the trial magistrate's response, the
Regional Magistrate referred the matter as aforesaid.
I
find myself in agreement with the Regional Magistrate.
In
terms of the charge sheet, the accused, allegedly in violation of a
trust agreement which required him to hold the trust property (the
push cart) on behalf of the complainant to whom he had been obliged
to hand it back on demand, had, on the date and at the place
mentioned, unlawfully and intentionally converted the property to his
own use.
The
State Outline, after identifying the complainant, stated that on the
date and at the place mentioned, the complainant had given the
accused the push cart “… for
hire to sell his products since July 2014
…” but that the accused had failed to return it to the owner.
The
State Outline went on to state that since the accused had been the
person with the property the complainant had approached him to take
it back but that the accused had told the complainant that it had
gone missing since the end of July 2014. The total value was put at
$80. Nothing was recovered. The accused was said to have had no right
to act in the manner he had.
At
trial, after the charge and the facts had been read out to the
accused, and after his plea of guilty had been entered, the trial
court went on to canvass the essential elements as follows:
“Q.
Admit [that] on 20/07/14 and at Tanganyika 3 Flats you were given a
cart by [complainant] on
a rent to buy?
(my emphasis)
A.
Yes.
Q.
You disposed of the cart?
A.
I left it outside my house and it was stolen at night.
(my emphasis)
Q,
You left it outside your house at night?
A.
Yes.
Q.
Was it guarded?
A.
No.
Q.
Was it secured in any manner?
A.
No.
Q.
You realised the possibility that it may be stolen?
A.
Yes.
Q.
You admit you were …. [indecipherable]
… grossly negligent and failed to account?
A.
Yes.
Q.
Any right?
A.
No.
Q.
Any legal defence?
A.
No.”
After
that the accused was found guilty as charged.
Clearly
the accused did not admit to the crime of theft of trust property.
Instead, he was saying he was himself the victim of theft.
In
terms of the Criminal Code, theft
is the taking of property capable of being stolen, knowing that
another person is entitled to own, possess or control it, or
realising that there is a real risk or possibility that another
person may be so entitled, and
intending to deprive that
other person
permanently of
his or her ownership, possession or control, or realising that there
is a real possibility that he or she may be so deprived.
In
this case neither the actus
reus
nor the mens
rea
was established.
Theft
of
trust property
occurs where a person holding trust property, in breach of the terms
under which he holds it, omits to account for the property; or
accounts incorrectly; or hands over the trust property to someone
else other than the owner; or uses the trust property, or part of it,
for a purpose other than that for which he or she is obliged to use
it; or
converts it to his or her own use.
There
was no evidence that the accused had converted the push cart to his
own use.
Trust
property
is defined to mean property held, whether under a deed of trust or by
agreement or under any enactment, on terms requiring the holder to
hold the property on behalf of another; or to account for it to
another; or to hand the property over to a specific person; or to
deal with the property in a particular way.
Significantly,
property received on terms expressly or impliedly stipulating that
the recipient is entitled to use it as his or her own, and where
there would only be a debtor and creditor relationship between the
parties, does not constitute trust property for the purposes of the
offence.
In
this case the State Outline made an ambiguous reference to the “hire”
of the push cart by the accused to sell “his”
products “… since
July 2014”.
It is not clear whether “his”
was referring to the accused or the complainant.
But
in canvassing the essential elements, the magistrate referred to a “…
rent
to buy”
arrangement to which the accused admitted.
If
that was the case, then the push cart was not trust property. The
relationship between the accused and the complainant would have been
one of debtor and creditor respectively. That is not a criminal
relationship in terms of the Criminal Code.
The
accused ought not to have been convicted of theft of trust property
without a proper trial.
Furthermore,
the accused may have been grossly negligent or reckless in leaving
the property outside unsecured or unattended. However, that could not
amount to mens
rea
if it was not him that stole it, or caused it to be stolen for his
own purposes.
Negligence,
however gross, or recklessness, cannot amount to mens
rea
or dolus
eventualis
as the trial magistrate meant to say: see Attorney-General
v
Munganyi.
In
that case, in the context of reckless driving within the meaning of
the Road Traffic Act, then No 48 of 1976 (now Cap
13:11),
where driving “recklessly” and “negligently” are now listed
separately and seemingly disjunctively following an amendment to that
Act, the court held that these categories of negligent driving
involve a gross and aggravated degree of negligence which
however, does not require any element of dolus.
It
was not clear why the accused had the push cart in his possession in
the first place. But from the scanty facts, it seems that the
relationship between him and the complainant was one of creditor and
debtor. That relationship can stem either from agreement, as
envisaged by the definition of “trust
property”
in section 112 of the Criminal Code, or from delict in terms of the
common law. But in either case, the failure to return the item that
is the subject of such an arrangement does not constitute theft of
trust property.
The
accused's plea of guilty should have been altered to one of not
guilty and a full trial should have been conducted.
In
the circumstances, the conviction and sentence in the court a
quo
are hereby set aside.
6
March 2015
HONOURABLE
MWAYERA J: I agree ………………………………………
1.
1986 (2) ZLR 137 (SC)
