Captain Lackson Silupya Kasita v People (SCZ 9 9 of 1999) [2000] ZMSC 104 (22 August 2000)

IN THE SUPREME COURT OF ZAMBIA APPLICATION NO. SCZ/9/9/99 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) BETWEEN: CAPTAIN LACKSON SILUPYA KASITU APPELLANT AND THE PEOPLE RESPONDENT CORAM: NGULUBE, CJ., SAKALA AND LEWAN1KA, JJS On 16th May and 22nd August, 2000 For the applicant For the respondent - - Mr. F. B. Nanguzyambo, Director of Legal Aid Mr. C. F. R. Muchenga, Senior State Advocate JUDGMENT Ngulube, CJ., delivered the judgment of the court. The applicant was tried by a court martial and convicted of two counts alleging defalcation and two alleging falsification. For this, he was sentenced to dismissal. He was acquitted on three other counts. He was convicted of stealing KI 50,000 cash from an imprest account which he had taken as salary advance when he was in charge of accounts and of stealing another sum of K252.989.60 unpaid balance of settling-in allowance due to one Colonel Chltula. It was alleged that the applicant paid himself the salary advance without permission and on the other count that he had pocketed the rest of the colonel’s allowance after giving him a part payment of KI00,000. On the other related charges, it was alleged he had instructed his subordinate to falsely write in the official records that he had been paid the full amount of K3 52,9 8 9.60 as settling-in allowance when the colonel had in fact only received KI 00,000. The difference formed the charge of theft. Similarly, the count alleging failure to make an entry in a service document with intent to defraud alleged that he had failed to ensure that his salary advance application was recorded in a register kept for such transactions. Counsel for the applicant raised a number of grounds in support of the application for leave to appeal out of time. Two grounds criticized the convening authority and the court martial for including in the depositions a statement of the applicant’s bad character which was an unfavourable document which may have prejudiced a fair trial. Objections had been raised below and dismissed with the assurance from the court that its impartiality and objectivity would not be affected by the statement. It is said justice must not only be done; it must manifestly be seen to have been done. In this regard, it has always been the practice to withhold from the trial court any evidence of bad character - such as of previous convictions or of a generally bad character - and in a suitable case a conviction can be quashed and a retrial considered if it is impossible to say that the prior wrongfill disclosure did not affect the accused’s chances of acquittal. Of course, there are cases which may be otherwise so overwhelming that the possible prejudice from such prior disclosure becomes immaterial. In this case, counsel for the applicant submitted with regard to the theft of KI 50,000, That there was no proof of a theft as such. He referred us to the evidence of PW4, a cashier, who said that the applicant’s application form was approved by the commanding officer after the witness had insisted this be done. The witness said he saw the signature on the appropriate space. The form itself was not produced at the trial but there was evidence that ZAF Headquarters made deductions so that by the time of the trial, the whole salary advance had already been recovered. PW5 was Colonel Phiri, the Commanding Officer, who denied approving such salary advance or signing any relevant forms and who insisted that the applicant had helped himself to some local cash as unauthorized or self authorized salary advance. Mr. Nanguzyambo submitted that the prosecution’s failure to produce the application form should be regarded as fatal to their case. In addition, counsel submitted that it was possible in the Zambia Air Force to take cash as an advance without the commanding officer’s approval as long as Headquarters later ratified the transaction, citing the example of Colonel Chitula’s settling in allowance where money was taken from some other local cash. With regard to the related charge of failing to ensure that the transaction concerning the salary advance was recorded in the appropriate document, counsel pointed out that the applicant himself did not have to make the entries. He argued that if he did not tell PW4 - the cashier - to make such entry and if the cashier needed prompting, then it was inadvertence and not criminal. In the case of the charge that he stole the balance of Colonel Chitula’s money, Counsel pointed out that there was no evidence of the existence of such money nor of the taking of any such money. What there was in the case was a mere error on the documents. Counsel further pointed out that although PW5 suggested that the applicant repaid the balance to Colonel Chitula (who was PW6) in instalments, PW6 himself did not say anything of the sort. It was submitted that it was inadmissible for evidence which PW6 himself could have given if there was any truth in it to be coming from a third party. With regard to the related charge that he had instructed PW4 to make a false entry that the Colonel had been given all his money, it was submitted that the applicant never instructed PW’4 to do so. What happened instead was that PW'4 failed to follow the instructions the applicant gave him. PW4 admitted at the trial that he knew that the Colonel had signed for K100,000 only which he was given and that the entry made by the witness to the effect that the Colonel had received all the money was wrong. The witness did not say he was instructed by the applicant to make the wrong entry. On behalf of the state, Mr. Muchenga informed us that the state was not supporting the conviction. In respect of the salary advance, Counsel was not satisfied because although PW5 himself had denied doing so, the cashier had said he received a form that bore the signature of the commanding officer, PW5. If the salary advance was approved, Counsel saw difficulty with the count alleging the non-making of an entry with fraudulent intent. In the case of colonel Chitula’s money, Counsel for the state did not see how the applicant could be held responsible for PW4’s mistake in recording how much had been paid, namely KI 00,000 only. As for the balance, Counsel had difficulty because there was no direct evidence that the applicant collected this money or that anybody whatsoever had collected this money. We have given the submissions due consideration. We disagree with Counsel on one count but otherwise agree with them on the other three counts. For the reasons advanced by both Counsel - with which we are in agreement - it would be wholly unsafe to allow the conviction to stand on the two counts related to Colonel Chitula’s settling in allowance. It would also be wholly unsafe to allow the conviction to stand on the count related to the non-making of an entry by PW* of the salary advance in the appropriate records. However, the count concerning the taking of an unauthorised salary advance iron) some local cash stands on a different footing. This is because of the evidence of PW5 and the special position of cash under the law of theft. The court martial had before it the live witnesses and we can not say that they failed to take proper advantage of hearing and seeing the witnesses at first hand when they accepted the evidence of the Commanding Officer who denied approving or authorising the salary advance from some locally available cash under the control of the applicant. Issues of credibility can hardly be more suitable to be resolved by an appellate court which only lias the record to go by than the trial court which enjoys an unparralled advantage. With regard to the law, we need only cite section 265(2)(e) of the Penal Code which makes the taking of cash if not authorized a completed theft even if there is every intention to repay or replace the money. It follows from what we have been saying that we allow the application in respect of conviction on the three counts we have said can not be allowed to stand; the application in that regard is treated as the hearing of the appeal on those three counts which we allow. The conviction on those three counts is quashed. The application is refused on the count relating to the unauthorized taking of a salary advance. There was no application relating to the sentence, which application would in any case not have succeeded on the remaining count. M. M. S. W. NGULUBE CHIEF JUSTICE D. M. LEWANIKA SUPREME COURT JUDGE