The State v Deajury Doro

### Preamble
1
HH 244-13
CRB 6862/11
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THE STATE

versus

DEAJURY DORO

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 4 July 2013

Criminal Review

MAWADZE J: The Provincial Magistrate Harare Province referred this matter to me under cover of the minute dated 28 February 2012 with the following comments:

“May the attached record be placed before an Honourable Judge of the High Court for review.

The accused was represented at the trial and ordinarily the case was not reviewable. The complainant has however raised a series of complaints in relation to the adequacy or otherwise of the sentence and the outstanding issues of restitution.”

I am not convinced that matters which are ordinarily not reviewable should be routinely referred to judges simply on account of some over bearing complaint in a criminal case. Judicial officers should familiarize themselves with the provisions of s 29 of the High Court Act [Cap 7:06] which deals with powers of the High Court on review of criminal proceedings. In casu it is clear that the complaint was simply not happy with the sentence imposed and raised the issue administratively with the Provincial magistrate. The Provincial magistrate in his wisdom did not seek the trial magistrate’s comments or the Attorney General’s views.

Be that as it may, I urgently attended to the matter and requested the Registrar through my clerk to find out whether the accused had paid the restitution or had been given further time to pay or had been committed to prison. This was so because I hold the view that the conviction of the accused may not have been in order.

I did not receive the response and it would appear that similar complaints had been made to the Acting Chief Magistrate who had established that the accused had been granted further time to pay. The Acting Chief Magistrate’s view was that the sentence imposed was manifestly lenient in view of the value involved and also shared the view that the record should be referred to this court for review.

It would appear the record was misplaced and was returned to my clerk’s office with other review matters without the relevant information. It was only on 1 July 2013 when the Acting Registrar wrote a memorandum to me indicting that the complainant had approached him to find out the outcome of the review. The record was pulled out and the Acting Registrar wrote to the Provincial Magistrate on 3 July 2013 to direct that the issues I had raised be attended to, that is if accused paid the restitution or was committed to prison.

I have decided to deal with this matter in terms of s 29 (4) of the High Court Act [Cap 7:06] despite the fact that no proper application for review was made and that the matter is not due for automatic review. I resorted to this provision simply because I am of the view that it has come to my notice that the proceedings in issue are not in accordance with real and substantial justice.

The facts of the matter are as follows:

The accused was convicted of contravening s 136 of the Criminal Law (Codification & Reform) Act [Cap 9:23] – fraud, after a protracted trial. The accused was charged with five counts of fraud.

The facts alleged by the State which are common cause can be summarized as follows:

The accused entered into an agreement with the complainant one Hemlata Naran in which the accused would buy chickens from the complainant on credit and the purchase price was to be paid within 7 days after each delivery.

In count 1 on 20 July 2011 accused took delivery of 740 kg of chicken valued at US$2482-66 and was payable on 28 July 2011.

In count 2 accused took delivery of 858 kg of chicken valued at US$3003-37 on 21 July 2011 and payable on 29 July 2011.

In count 3 the accused took delivery on 25 July 2011 of 2000 kg of chicken valued at US$6800-00 payable on 1 August 2011.

In count 4 on 27 July 2011 accused took delivery of 1 000, 3kg of chicken valued at US$3401-02 payable on 2 August 2011.

In count 5 on 28 July 2011 accused took delivery of 2000 kg of chicken valued at US$7402-22 payable on 3 August 2011.

From the evidence on record the accused was found not guilty and acquitted in respect of count 1. The court established that the accused paid the amount due.

The record is not clear as the accused was found guilty in respect of counts 2 to 4 and nothing is said about count 5.

In respect of the sentence my assumption is that all four counts accused was convicted of were treated as one for purposes of sentence.  This is not evident on the face of the record.

The accused on 4 November 2011 (not 2012) was sentenced as follows:

“18 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition the accused does not during that period commit any offence involving dishonesty of which upon conviction she is sentenced to imprisonment without the option of a fine. The remaining 12 months imprisonment is suspended on condition the accused restitutes the complainant in the sum of US$16 607-20 through the clerk of court on or before 31 January 2012.”

It is not clear from the State outline as to when the complainant started to have problems with the accused moreso as the accused had made payments in respect of count 1. It is however clear that the accused did not honour her commitments in respect of other outstanding amounts. An acknowledgement of debt which is undated but signed on August 2011 by the accused shows that accused accepted her indebtedness in the sum of US$24089-25 to the complainant.

The record of proceedings is not transcribed. It is always prudent that when such a record is referred to a judge for review the record be typed or transcribed. The trial magistrate’s handwriting makes the reading of the record of proceedings very onerous.

The accused pleaded not guilty to all the charges. The accused’s defence outline is said to be attached but its not in the record. The accused however in his defence stated that while she owed complainant some money arising from the sale of chickens her conduct is not criminal. In fact an exception to the charges was taken by the accused but was dismissed by the trial magistrate.

While the trial magistrate properly summarized the essential elements of the offence of fraud, the trial magistrate failed to properly apply the law to the facts of this case.

The accused explained in evidence that she had problems in timeously settling the debt because she had lost a brother. This was dismissed as false because no corroborative evidence in form of a death certificate or viva voce evidence was called. The finding was that the accused had lied in this respect. My view is that there is no objective basis to make such a finding. Similarly the accused was also found unreliable and therefore guilty on account of the fact that her evidence that a relative had taken some of the chickens and had not paid her in time was not true.

Even assuming that the accused had lied in her evidence on those aspects, the question to be answered is whether on the facts alleged which are common cause the accused’s conduct amounts to the crime known as fraud.

To my mind the dispute between the parties is a civil one rather than criminal. The parties entered into a contract and there is nothing to suggest that the accused made a fraudulent misrepresentation to the complainant to induce her to enter into such a contract. In any case the accused paid some of the money as per the trial magistrate’s finding. The reasoning by the trial magistrate that the accused’s failure to pay the amount due timeously is not convincingly explained and that it amounts to proof of lack of capacity to pay at the time the parties entered into the contract is flawed. The logical consequence of such an analogy is that every debtor who has failed to pay his or her dues is guilty of the crime of fraud. I am therefore of the firm view that on the facts of the matter there was no basis to charge, prosecute or let alone convict the accused of fraud. The complainant’s remedy is in the remedies provided for breach of contract. The mere failure to timeously pay a debt is not proof of fraudulent conduct. The criminal route which the complainant chose is clearly the wrong option in the circumstances. The complainant’s protestations cannot be sufficient basis to convict a debtor of the charge of fraud.

Consequently the accused’s conviction in respect of all the counts cannot be allowed to stand. If the accused has been committed to be in prison she should be immediately released.

Accordingly it is ordered that:

The conviction of the accused in respect of all the counts in respect of contravening s 136 of the Criminal Law (Codification & Reform Act) [Cap 23] be and is hereby quashed.

The Registrar of the High Court is directed to ensure that the accused is not further prejudiced by the possible operation of the sentence which now falls away as a result of the quashing of this conviction.

BERE J: agrees ………………………………