Jere v People (SCZ Appeal 4 of 1994) [1993] ZMSC 101 (7 December 1993)

ihe a e? is 5CZ Appeal No. 4 of 1994 HOLDEN AT HDXA (Criminal Jurisdiction) HENRY JERE Appellant vs THE PEOPLE Respondent CORAH: Sweupe, A. C. J., Sakaia and Chai la JJ. S. 7th December, 1993. For the Appellant : Mr. D. E. Ndhlovu, Luso Chambers, Chingola For ths Respondent : Mr. T. J. A. Perera, State Advocate JUDGMENT Chaila. J. S. delivered the judgment of the court. / ; The appellant was Charged with theft by public servant. The particulars of the offence were that, he, on 27th July 1939 at Chilildbo>nbwe in the Chililabombwe District of the Copperbolt Province of the Republic of Zambia, being a person employed in the public service namely, as a Court Clerk in the Ministry of Legal Affairs, did steal K2,000 cash, which came into his possession by virtue of his employment, the property of the Government of the Republic of Zambia. He was prosecuted and he was convicted and was sentenced to two years imprisonment with hard labour. The brief facts of the case were that he was employed as a Court Clerk in the Judicial Department of the Ministry of Legal Affairs. He was given K4.643 to change into the new currency but later it was discovered that money changed was short by <2,000.00. During trial he contended that the <2,000.00 tie was being accused of having stolen was his private money. The learned trial magistrate did not agree with nis explanation and he found him guilty of the offence. He appealed to the High Court against both conviction and sentence. The High Court dismissed the appeals. He now appeals to this court against botn conviction and sentence. His Advocate /2.... Mr. /MMovu... Mr. Ndhlovu has filed a number of grounds, Tiw learned State Advocate Mr. Perera has Indicated that the State was not supporting the conviction. The court inquired from him why he had taken that position. vie explained that the learned trial magistrate who tried ths case was his colleague and that they were working together in the Ministry of Legal Affairs. They had known each other and it was improper for the trial magistrate to take the case against the appellant. He further argued that tho appellant had been denied lagal representation and that either the case should be completely allowed, or be sent back for retrial. Ue have considered Mr. Perera’s argument which has been supported by his colleague Hr. Ndhlovu who argued that conviction and sentence should not stand for the reasons given by Mr. Perera and also on the grounds given by him tn writing. This case came up before a magistrate Class I Mr. Mulonda on 14th August, 1989. The case was adjourned to 17th August, 1939 for plea. When the matter came up the appellant informed the court that lie had engaged Messrs Mwanawasa and Company and that his lawyer was going to be free on either 14th or 15th September, 1989. The matter was duly adjourned to 14th September, 1989. On 21st August 1939 Magistrate Mulonda brought up the case In Chambers, the accused was not present. He reported that he had received instructions from the Principal Resident Magistrate, Kitwe to transfer the case to Mr. E. C. Kambanja, Magistrate Class III. The case was so transferred to Mr. kambanja. On 1st September 1939 the accused appeared before C. Kambanja who informed the accused that the matter nad been transferred to him on instructions of the Principal Resident Magistrate, Kitwe and that he was therefore going to taka a fresh plea of It. The charge was explained to the accused. The accused made the following application, "the court is well known to me and to Mr. Chibwe who is representing the State, I therefore wonder whether I am going to nave any fair trial at all. The Magistrate replied, "the accused and the court were once interpreters In the same Ministry but never before have we been at one station together or let alone associated myself with him. We had nothing In common before just as we have nothing in common now apart from tne fact that we work in the same Ministry. As for th® witness, there is no rule of law that forbids a court to try /3...a case where - J3 a case where the witnesses are known to It. If it ware so» very few trials would have taken off. It is not knowing the witnesses that matters but the nature of their evidence. I find no merit in both grounds and I dismiss them." The trial then commenced. The prosecution called their first witness. At that time the appellant never informed the new trial magistrate that he wanted his Advocates to be present. The trial continued from that day 1st September. 1939 until trial ended in March 1990. After judgment had been given, the accused was convicted and sentenced to 2 years imprisonment with hard labour. Mr. F, Msimuko of Msimuko and Company on 1st March 1990 applied for bail on behalf of the appellant. Having red the record, we cannot find any information which shows that the appellant was denied legal representation. That complaint cannot therefore be up*heid. On the question of the appellant having been tried by Mr. ka^anja who had worked with the appellant in the same Ministry, the Magistrate when the application was made, explained the position and he refused to excuse himself from taking up the case. We do not consider the learned trial magistrate erred in taking that stand. Tne appeal therefore cannot succeed on that ground. Mr. Hdhlovu, counsel for the appellant, argued that the judgment of the lower court was unfair and unsatisfactory on the ground that the evidence adduced by the prosecution which supported the appellant’s story that tne money which was changed consisted of private and Government i^oney was ignored. He gave an example of PU3 who told the court that she gave the appellant K2.000 to change for her and PW7 while waiting and the appellant were Inside the bank. PW3 and PW5 waited for them out side the bank. Mr. Ndhlovu further argued that evidence showed that private money was to be changed. He further submitted that the evidence adduced by PW2 which was favourable to the appellant was ignored. On the other grounds of appeal the learned defence counsel argued that the money which was made subject of the offence was not Government money and the appellant should have not therefore been convicted of the offence of theft by public servant. He also raised the question of fair trial in one of his grounds. He submitted tnat the appellant had objected to the trial magistrate taking the case but he was over /4....ruled. - J4 - ruled. The defence counsel argued that the learned trial fflagistrate missed the point. As we have already said the trial magistrate dealt wltn the objection and properly rejected the objection to Mm taking the case. We have looked at the judgment complained of and we have not found any bias on the part of the trial magistrate. We have considered other grounds submitted by Mr. Ndnlovu. We have considered the evidence adduced before the lower court and we are satisfied that the learned trial magistrate approached the issues before him correctly and came to the right conclusion* The evidence against the appellant was overwhelming. There was no prejudice during trial* The appellant was not denied legal representation. For the foregoing reasons the appeal against conviction is therefore dismissed. As to sentence we feel that suspended sentence will be appropriate. The sentence of 2 years is suspended for 12 months with Immediate effect. 3. K. 3weu')e ACTING CHIEF JUSHCE E. L. Sakala SIPSEME COU^T JUDGE M. S. Challa SUPREME COURT JUDGE