R v Mbedza (Criminal Appeal 15 of 2017) [2023] MWHC 124 (1 December 2023)

ZOMBA DISTRICT REGISTRY CRIMINAL APPEAL NO. 15 OF 2017 (Being Criminal Case No 516 of 2013 before the Zomba Resident Magistrate Court) THE REPUBLIC APPELLANT AND TREEN MBEDZA RESPONDENT CORAM: HON. Z NTABA, J. Mr. G. Mwenelupembe, Counsel for the Respondent Mr. T. Chirwa on brief for Mr. R. Mhone, Counsel for the Appellant Ms. D. Banda, Official Interpreter and Court Clerk Mrs. L. Mbonga, Ntaba, J JUDGMENT 1.0 THE APPEAL 1.1 The Respondent, Ireen Mbedza, was charged in the Resident Magistrate court sitting at Zomba with and acquitted of one count of theft by public servant contrary to section 283 as read with section 278 of the Penal Code and in the alternative negligence by public officer contrary to section 284 of the Penal Code respectively. The accused was an employee of Southern Region Water Board (hereinafter referred to as ‘SRWB’). She was initially employed as a temporary Data clerk before she was moved to permanent position as a meter reader and later was given the position of a permanent cashier based in Zomba. While working as a cashier with SRWB and having received money from the customers of SRWB in her employment, she failed to account for a sum total of K8,798,462.00 which she had received between 5" July and 1% October, 2013. After a full trial, the court acquitted her of the charges. Treen Mbedza v Republic 1 1.2 The State beingun. Satisfied with the lower court’s decision brought an appeal against the acquittal. They appealed against the acquittal and raised the following grounds — 1.2.1 that the magistrate erred in Jaw in not finding that the accused failed to rebut the presumption of theft as she had failed to produce the deposit slips of cash she claimed to have banked; 1.2.2 that the magistrate erred in law when she failed to lay out the elements of section 284 of the Penal Code on negligence by public servant; 1.2.3 that the magistrate erred in law and fact when she failed to analyze the facts of the case against the elements of section 284 of the Penal Code; and 1.2.4 that the magistrate erred in law and fact when she failed to find the Respondent negligent when in fact, she failed to produce the cash deposit slips that she claimed her colleague had deposited on her behalf. 1.3. The Appellant supported its appeal with skeleton arguments and argued that whilst working at SRWB, the Respondent was receiving money from customers in the form of a cheque or cash. She indicated that the money which was in question was received in the form of cheques or cash. She had argued in the lower court that for the cheque received for the days in question she was able to account for as she had cheque receipts. She highlighted that she did not have cash receipts because her workmate had done those deposits on her behalf. The said workmate was not available as she was still at large. The State argued that why was she was able to account for the cheque deposits but not the cash deposits which were being done at the same time. The State also argued that the deposit slips for the bank will always bear the name of the said cashier and in this case, they bore hers and this was noted on page 9 of the lower court record. It was the State’s contention that the lower court erred in law in acquitting the accused on both counts as one of the key elements is that the accused must fail to account for the property in her custody which she received. They further contended that her explanation of her colleague banking the money was not reasonable because it was money received on 18 separate occasions and banked on 18 separate occasions. 14 The State argued in the alternative that if the court failed to find guilty on theft by public servant but should have found her guilty of negligence by public servant. It was negligence as on 18 separate occasions she failed to report to her superiors of this issue. The State in support of the appeal, Fhey prayed that the Court - 1.4.1 reverses the ruling of the magistrate in the lower court; and 1.4.2 finds the Respondent guilty of the offences leveled against her. Treen Mbedza v Republic 2 1.5 1.6 The Respondent in response to the appeal argued that the lower court adequately addressed all the issues which the State highlighted as noted on page 8 of its judgment in particular the last 2 paragraphs as regards the State's first ground. Further, pages 10 and 11 of the lower court judgment addressed a lot of the other issues and she cited Banda v Republic 7 MLR 433 to support this position. In terms of the alternative charge, the lower court’s reasoning found on pages 9 and 10 is are adequate as it they analyzed the facts and the law. Incidentally page 12 of the lower court record buttressed the reason why the lower court was right to acquit as noted in Republic v Ndovi 7 MLR 235. The Respondent argued that the reason the State failed in this case to prove beyond reasonable doubt was because of two reasons. Firstly, the State poorly investigated the case especially looking at the evidence of the police investigator who was not from fiscal police and therefore not competent to investigate the case. He did not obtain CCTV footage when he knew the same was very contentious as to prove who was banking. He also failed to interview the other cashier despite being given information that it was her who went to the bank. Secondly, they argued that SRWB was negligent as they admitted of having no system for keeping the deposits which were kept in a box in an open place and accessible to anyone. Further he admitted that banking was done by different persons. He also admitted that the Respondent would remain at their offices officers to attend to customers whilst another cashier went to do the deposits as she had a personal case. She emphasized that it was the duty of State to prove beyond reasonable doubt on the charges proffered against her and if there is doubt, then the same needs to be exercised in her favour as noted on page 8 of the lower court record hence the court proceeding to acquit. In terms of the alternative count, it was the duty of the State to show the recklessness or negligence and it did not. The fact that the deposit slips were kept in a box in an open space, such recklessness was SR WB’s for not having proper standing procedures. They prayed that the appeal be dismissed. 2.0 COURT’S DETERMINATION 2.1 This Court is seized of the matter for purposes and by law under sections 42(2) of the Constitution, 25 and 26 of the Courts Act as well as 346 of the Criminal Procedure and Evidence Code (hereinafter referred to as “the Code”). This Court is seized of this case for purposes of appeal. In determining an appeal, this court is requested to examine the record of any criminal proceedings before any subordinate court for the purpose of ensuring that the trial at the lower court was correctly handled, legal or proper in terms of procedure as well any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of such subordinate court. Furthermore, in exercising its appeal powers, this Court shall consider the evidence by way of hearing the aggrieved party or his or her legal practitioner. In an appeal by any aggrieved person from a conviction, if upon hearing the aggrieved party a court considers that there is no sufficient ground for Ireen Mbedza v Republic 3 interfering with the lower court’s determination, this Court has the power to dismiss the appeal or it may reverse the finding and sentence and acquit or discharge the accused or order him or her to be tried by a court of competent jurisdiction or commit him for trial. This court may also alter the finding and maintain the sentence, or with or without altering the finding, may reduce or increase the sentence. 2.2 Pertinently, criminal law has made it fundamental that substantial justice should always be done without undue regard for technicality and that shall at all times be adhered to in all criminal matters as stipulated under section 3 of the Code. This issue is what this Court has principally adhered to in the examination of this appeal. However, this Court also acknowledges that where a finding by a lower court result in a failure of justice, such failure must be rectified. The rectification should be done at the earliest possible time as per section 5 of the Code. In dealing with the present appeal, the Court is mindful that appeals to this Court from subordinate courts come by way of rehearing. In Malani Soko and another v The State, Criminal Appeal Cause. No. 30 of 2011 (HC)(MZ)(Unrep), the court stated that when a court is considering an appeal from the court below, such proceeds by way of rehearing all the evidence that was before the court below, the findings of fact and the law applied, and then consider, in the light of all that took place during trial, whether the Court below was within the ambit of the law in coming to its conclusion. 2.3 It should be stated from the onset that the burden of proof in criminal cases rests on the prosecution. This point must be emphasized every time a person is about to be subjected to criminal trial. The prosecution ought to prove beyond reasonable doubt that indeed the accused deserves to be subjected to the coercive power of the state that comes in the form of criminal punishment upon him/her. This entails that whenever there is reasonable doubt that the accused committed the offences in question, he/she deserves to be acquitted. Further, in a criminal trial, care ought to be exercised before a trial court reaches a conclusion that an accused has indeed made admissions of particular facts. 2.4 Accordingly, to discharge this burden, and to sustain a conviction therefore, the prosecution must establish by the necessary evidence all the elements of a particular crime, and this was also provided for in section 187 (1) of the CP& EC. Further, in the case of Chauya v Republic, Criminal Appeal Number 9 of 2009 (Unrep) where Justice Chipeta (as he was then) emphasized that the proviso to section 187 (1) of the CP & EC squarely places the onus to prove an accused guilty in any given case on the state, and no one else. In an indescribably long chain of authorities, Woolmington v DPP (1935) AC 462 happens to be the grandfather authority on the point that in such cases, the prosecution is only considered to have successfully discharged their onus if, and only if, they so prove the guilt of the accused person beyond a reasonable doubt. Any degree of proof falling short of this standard, even if it achieves the object of amassing great suspicion against an accused person, as long as it happens to be below proof beyond reasonable doubt, must result in an Treen Mbedza v Republic 4 acquittal. He also emphasized that criminal law, it should always be recalled, thrives on the noble principle that it is better to make an error in the sense of wrongly acquitting a hundred guilty men than to err by convicting and sending to an undeserved punishment one innocent soul. Notably, the State only had to prove these elements as stated beyond reasonable doubt because the Defendant pleaded guilty. 2.5 Section 283(1) of the Penal Code provides that, Where it is proved to the satisfaction of the court that any person employed in the public service has by virtue of his employment received or has in his custody or under his control any money or other property, and such person has been unable to produce to his employer such money or other property or to make due account therefor, such person shall, unless he satisfies the court to the contrary, be presumed to have stolen such money or other property, and shall be convicted of the felony of theft. In the matter herein, it was not in doubt that the Respondent was a person employed in the public service. She did not also deny that she had received or was in custody as well as control money or property in question. Interestingly, in Republic v Mkwezalamba, Criminal Appeal No. 52 of 200 (HC)(Unrep) where the court was satisfied that the accused in the case had by virtue of his employment in the public service, lawfully received or had in his custody money amounting up to K 7, 652.00. This Court notes that these are issues which are not in dispute in this case. 2.7. Further, the Respondent was also in agreement that all the above was by virtue of her employment. In terms of the case herein, the Respondent denied that she had failed or was unable to produce to her employer such money or other property or had failed to make due account thereof after being asked. Regarding this final aspect, the Mkwezalamba case illustrated that the accused had failed to account for the money which he had received. In contrast, in the case herein, the Respondent tendered evidence that even though she had received the money it was not solely her obligation to deposit the money as some of the monies were deposited by her colleague. Further to this, she also managed to produce evidence (deposit slips) of the cheques that she had personally handled. She also could prove that her story was plausible as it was corroborated by an SRWB employee who gave evidence. Further evidence by the said witness corroborated that it was the other employee who used to go to bank and the Respondent would remain in the office attending to customers. This Court on perusing the lower court record and addressing itself on the law, opines that reasonable doubt was placed in the prosecution’s case. 2.7 The legal issue herein is raising some serious concerns with regards to the interpretation of section 284(1) of the Penal Code. The provision provides that “Where any person employed in the public service has by virtue of such employment received or had in his custody or under his control any money or other property, and as a result of the gross negligence or recklessness of that person that money or other property, or any part thereof, is lost or stolen or cannot be accounted Treen Mbedza v Republic 5 for by that person, then that person shall be guilty of an offence.” It is trite therefore to unpack the provision first before proceeding to address the question raised. From the face of the provision one can tell that it has so many elements. 2.8 Turning to this alternative charge of section 284 (1) of the Penal Code should be examined by reviewing the circumstances of R v Phiri (1992) 15 MLR, the court encountered a scenario whereby the accused was employed as an account*s assistant. His main duty was to write vouchers which would be sent to the head office whereby they would send cheques in return so that the accused could cash out the money and distribute it to its intended beneficiaries. It was discovered however that the accused was inflating the figures in the vouchers so that he could embezzie the surplus amount of money emanating from his head office. He was convicted of theft by a public servant. However, on confirmation the court stipulated that “the prisoner received the sum of K2, 110.50 by falsification of documents and therefore, it cannot be said that the money was lawfully in his custody or under his control”. Clearly this shows that for one to be regarded as being in possession of property or money by virtue of holding a public office one has to hold the money or property lawfully and should not be obtained through some illicit means. Additionally when examining the issue of “as a result of the gross negligence or recklessness of that person that money or other property, or any part thereof, is lost or stolen or cannot be accounted for by that person” in the said section, the sentiments of Chatsika J (as he was then known) in the case of R v Ndovie 7 MLR 235, offer this Court immense assistance — “Ht is not every act of negligence by a public afficer in preserving public money or property that would justify a conviction under S.284 af the penal code there are different degrees of negligence and to justify a conviction a very high degree is required to be proved before the negligence as understood in criminal law can be said to have been established... mere inadvertence in preserving public money or property, while it might create civil liability, would not suffice to be the basis of instituting criminal proceedings”. 2.9 This Court in examining whether the Respondent’s behaviour d-as-amounted to negligence opines that no to the requisite standard of proof beyond reasonable doubt, This Court agrees that there was some level of negligence however it concludes that it is an undeniable fact that SRWB did not keep proper records of the people who were depositing money on its behalf. Further to this the person at large was only instructed to do the deposits simply because she had a personal car and such was not SRWB policy. Additionally, to add on to this the accused clearly stipulated that the money was being deposited by Kalitera, the other cashier on direction by Mphweya, the SR WB witness. Further there was no safe keeping of the said deposit slips and every person in the office had access to them. In essence, it would be folly and preposterous for any court to convict an accused on this charge of negligence based on the evidence tendered i#this-case herein. It is clear, the State failed to freen Mbedza v Republic 6 build a strong and convincing case against the accused person even on this alternative charge. 3.0 ORDER 3.1 3.2 Based on the preceding discussion, this Court finds that the proceedings in the lower court were not characterized by procedural irregularities, unfairness, or bias that would constitute an affront to justice. Sections 3 and 5 of the Criminal Procedure and Evidence Code stipulate that the court should not alter decisions on review or appeal unless the irregularities have led to a failure of justice. In this case, the Court notes the following — 3.1.1 the State failed to adduce evidence that the duty of depositing the money was exclusively the duty of the aeeused Respondent. Therefore, one can be compelled to agree with the lower court that the accused should be exonerated from liability; 3.1.2 the lower court did not err in law and fact in — (a) finding that the Respondent was not guilty of the offence of theft by public servant contrary to section 283(1) as read with section 278 of the Penal Code; nor (b) finding the that the Respondent was not guilty of the alternative offence of negligence by public servant contrary to section 284 of the Penal Code. In conclusion after critically analysing the law coupled with the facts of the case at hand. The court is compelled to agree with the conclusion that was reached by the lower court owing to the fact the prosecution failed to prove their case beyond the reasonable doubt prerequisite for the substantive as well as alternative count. Accordingly, this Court dismisses the State’s appeal and confirms the lower court’s acquittal verdict. 1 order accordingly. Delivered on this 15‘ day of December, 2023. C SS aR, #.3. V. Ntaba JUDGE freen Mbedza v Republic 7