Esme Mary Gallias v The People (HNA 284/1970) [1971] ZMHC 6 (13 August 1971)

ESME MARY GALLIAS v THE PEOPLE (1971) ZR 44 (HC) I HIGH COURT 40 CHOMBA J 13TH AUGUST 1971 (HNA 284/1970) Flynote Criminal law and procedure - Mens rea - Whether a constituent part of the 45 offence under reg. 9 of the Exchange Control Regulations as read with s.6 (a) of the Exchange Control Act. ■ 1971 ZR p45 CHOMBA J Criminal law and procedure - Defence of mistake - Whether open to an accused charged with an offence of absolute or strict prohibition. Headnote The accused was charged with an offence under reg. 9 of the Exchange Control Regulations and s. 6 (a) of the Exchange Control Act for having made payment outside the country in contravention of the law. It was 5 pleaded on behalf of the accused that there was no mens rea in doing the act and that mistake was a defence under s. 11 of the Penal Code. Dismissing the appeal against conviction and sentence: Held: I (i) The fact that the mental element is not expressly incorporated in 10 the regulation, coupled with the fact that the regulation is intended to protect revenue, leads to the conclusion that mens rea is excluded by necessary implication. The office is one of absolute or strict prohibition. (ii) Mistake is irrelevant in considering the guilt or otherwise of an 15 accused person charged with an offence of absolute prohibition; mistake only negatives mens rea. ■ ■ Cases cited: (1) Brend v Wood (1946) 62 TLR 462 I (2) R v Prince (1875) LR 2 CCR 154 20 (3) Cundy v Le Cocq (1884) 13 QB 207 (4) R v Orr (1945) 4 NRLR 20 Legislation referred to: Exchange Control Act (Cap. 276), s. 6 (a). I Exchange Control Regulations (Cap. 276), r. 9. 25 Penal Code, l 965 (Cap. 6), s. 11. H Reilly, Jaques & Partners, for the appellant. S Heron, State Advocate, for the respondent. Judgment Chomba J: The appellant in this case was charged with and subsequently convicted of the offence of doing an act which was in 30 association with the payment of money ■ outside Zambia without the permission of the Minister, contrary to reg. 9 of the Exchange Control Regulations 1965 and s. 6 (a) of the Exchange Control Act Cap. 276. The particulars of offence were that the appellant on or about the 22nd April, 1968, at Mufulira in the Mufulira District of the Copperbelt Province of 35 the Republic of Zambia, did an act which was in association with the payment of money outside Zambia, namely by providing sum of K8,000 or R8,000 its equivalent in South African currency to one G. B. Thiele for the purpose of making a payment outside Zambia in favour of Contai Construction Co. Pty Ltd. Cape Town, by the use of a Bank Mail Transfer 40 through the Mufulira branch of Barclays Bank D. C. O. without the permission of the Minister. She was fined K24,000 in default six months' simple imprisonment. ■ ■ CHOMBA J 1971 ZR p46 She later filed an appeal against both conviction and sentence based on the following grounds: (1) That the sentence was excessive. (2) That there was no or no sufficient evidence upon which the trial court could convict. 5 (3) Such further or other grounds as may be filed after perusal of the record. I However, grounds 2 and 3 were, on the occasion of the hearing of the appeal on the 13th August, 1971, withdrawn and with leave of the court 10 the following grounds were substituted: ■ (2) The trial magistrate erred in finding that the necessary element of mens rea was present. In particular he was wrong in his finding that at the time of her conversation with Thiele the appellant knew that exchange control permission had not been I approved. 15 (3) The trial magistrate was wrong in finding that section 11 of the Penal Code could not operate in the defendant's favour. I propose to deal with these latter grounds before dealing with the question of sentence. It is appropriate first to consider the issue whether mens rea is a constituent part of the offence under reg. 9 of the Exchange 20 Control Regulations as read with s. 6 (a) of the ■ Exchange Control Act Cap. 276. Regulation 9 is couched in the following terms: "9. Except with the permission of the Minister, no person shall do any act which involves, is in association with, or is preparatory to, making of any payment outside Zambia: 25 ■ Provided that nothing in this section shall prohibit the doing of anything otherwise lawful by any person with ■ any foreign currency obtained or retained by him in accordance with these regulations." The mental element in crime is usually marked by incorporating any of the following words, that is "maliciously", "fraudulently", "negligently" 30 or "knowingly",in the statute creating the crime. None of these forms of mens rea are incorporated in r. 9. The act of dealing with currency in any of the ways therein specified is made unlawful if it is done without the permission of the minister. Prima facie therefore the offence created by the regulation is one of strict or absolute liability. However, I am not 35 unmindful of the view expressed by Goddard, Lord Chief Justice, at p. 463 in the case of Brend v Wood (1) when he stated, "It is of utmost importance for the liberty of the subject that the court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man 40 guilty of an offence against the criminal law unless he has a guilty mind." Regulation 9 does not expressly or clearly exclude mens rea and therefore I have to consider whether it does so by necessary implication. In this connection I pray in aid the dictum of Brett, J, in R v Prince (2) where he held at p. 173, "There are enactments which by their form seem to 45 constitute the prohibited acts into crimes and by virtue of which enactments the defendants charged with committal of the prohibited acts may be convicted in the absence of the knowledge or intention necessary to ■ ■ ■ 1971 ZR p47 I CHOMBA J constitute a mens rea. Such are enactments with regard to trespass in pursuit of game or of piracy of literary or dramatic works or the statutes passed to protect revenue." In this dictum I wish to stress the concluding words, "or the statutes passed to protect revenue". It is clear from the language of the said reg. 9 that it was intended to protect 5 revenue. This is made all the more clear by the preamble of the Exchange Control Act, Cap. 276, which states, "An Act to confer powers and impose duties and restriction in relation to gold, currency, securities, exchange transfers, payments, debts, and the import, export, transfer and settlement of property and for the purpose connected with the matters aforesaid." 10 The fact that the mental element is not ■ expressly incorporated in the regulation, coupled with the fact that the regulation is intended to protect revenue, leads me to resolve that mens rea is excluded by necessary implication. Therefore in my opinion the offence created by reg. 9, ibid, is one of absolute or strict prohibition. Having come to this conclusion 15 I am of the view that the learned senior resident magistrate who tried this case misdirected himself in law when he held that mens rea was an ingredient of the offence under consideration. ■ This leads me to the second ground of appeal, namely whether the defence of mistake was open to the appellant. Section 11 of Cap. 6 on 20 which the appellant's counsel relied in his submission in this regard reads as follows: ■ "A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater 25 extent than if the real state of things had been such as he believed to exist. ■ The operation of this rule may be excluded by the express or implied provisions of the law relating to the 1971 ZR p48 I ■ ■ subject." The appellant testified in her evidence that her husband Mr Gallias had, 30 prior to the transfer of the K8,000, the subject of the charge, applied for Exchange Control Permission to transfer to South Africa an amount in the range of K8,000 - K10,000. She went on, "I received a phone call from Mr Thiele (a bank official at the bank) in January or February, 1968. Mr Thiele asked for Mr Gallias." She quoted Thiele to have told her, "I 35 would just like to tell you to tell your husband that he will now be able to send out sufficient funds for the two old ladies." By this communication she understood that Exchange Control permission had been granted. She then signed two cheques in blank for Thiele to collect and thereby effect on her behalf payment of money to Contai I Construction in South Africa. 40 In the light of this evidence of the appellant Mr Hugh Reilly, her counsel, submitted that the appellant was induced by Thiele honestly and reasonably to believe, although mistakenly as we now know, that Exchange Control had been given by the Minister. By operation of s. 11, supra, if what she believed had been the true state of affairs then she had 45 an impregnable defence to the charge, it was argued. ■ CHOMBA J As earlier stated, my opinion is that the offence charged was one of absolute or strict prohibition. The question to which I now advert is whether the defence of mistake was open to the appellant. Authorities suggest that this defence does not apply to offences of absolute 5prohibition. At p. 65 of the 11th edition of Russell on Crime I find the following pronouncement, "In the large number of modern statutes many have been interpreted by the courts as using language which, in prescribing punishment for the specified deeds (each of which is thus an actus reus), has excluded any requirement of mens rea at all. Where this is so, the question 10 whether the accused may have committed the deed intentionally, recklessly, negligently or by mistake is irrelevant so far as his liability is concerned." Again the same author states at p. 83, ". . . where the statute excludes the mental element then the presence or absence of that element is irrelevant and the guilt of the accused person is not 15 affected by any mistake of fact which may have led him to suppose that he was not doing the forbidden thing." As to the effect of mistake in cases in which that defence applies, Russell states at pp. 78 - 79, "More often however the defence of mistake relates to the absence of mens rea, that is to say, the mistake negatives the existence of the particular intent or 20of that foresight of the consequences which the law requires to render the prisoner guilty." The view that mistake negatives mens rea is subscribed to by another eminent author. Glanville Williams in his book Criminal Law - The general part states at p. 20, footnote 12, "... it seems obvious that mistake can only negative mens rea ...". From these 25 pronouncements therefore two points emerge clearly. First the presence or absence of mistake is irrelevant in considering the guilt or otherwise of an accused person charged with an offence of absolute prohibition. Secondly mistake only negatives mens rea. The first point has been applied in decided cases. In the case of Cundy 30 v LeCocq (3) the appellant was charged with an offence under s. 13 of the Licencing Act 1872 which enacted, "If any licensed person permits drunkenness or any violence, quarrelsome, or riotious conduct to take place on his premises, or sells any intoxicating liquor to any drunken person, he shall be liable to a penalty not exceeding for the first offence, 35 10L, ■ and not exceeding for the second and any subsequent offence 20L. Any conviction for any offence under this section shall be recorded on the licence of the person convicted, unless the convicting magistrate or justices shall otherwise direct." The appellant was convicted of the offence of serving liquor to a drunken patron although it had been 40 accepted that at the material time the appellant honestly and reasonably but ■ ■ ■ ■ I ■ mistakenly believed that the patron was sober. Stephen, J., in affirming the conviction held at p. 209, ibid, "I am of the opinion that the words of the section amount to an absolute prohibition of the sale of liquor to a drunken person and that the existence of a bona fide mistake 45 as to the condition of the person served is not an answer to the charge . . ." This dictum was noted with approval by Robinson, ACJ, in R v Orr (4) in deciding an appeal by Orr who was convicted of an offence charging a contravention of an enactment that forbade the employment of a certain category of Africans. After considering the foregoing authorities I come ■ 1971 ZR p49 I ■ ■ ■ CHOMBA J to the conclusion that the trial magistrate was correct, although for different reasons in rejecting as not being relevant and applicable the defence provided by s. 11, supra. As stated in the second half of the section the defence of mistake is not of universal application. It may be excluded expressly or impliedly by the law relevant to the subject under 5 consideration. If I am wrong in holding the view that the offence in the present case was of absolute prohibition and therefore that the defence of mistake was not available to the appellant, I have to consider whether any mens rea, which may be a constituent of the offence, was negatived by the claimed mistake of the appellant. The mistake that absolves one 10 from guilt has to be both honest and reasonable. If Thiele did indeed tell the appellant that the appellant's husband was free to send money to South Africa, was she reasonably mistaken in assuming that that permission, if it was granted, which it was not, extended to her. In my view such cannot be said to be reasonable. The 15 husband, although not at home on the occasion of the telephone call from Thiele, was in Mufulira like the appellant. It is therefore reasonable to expect the appellant to have conveyed Thiele's message to him as it was intended for him and not for her. Moreover her conduct after receiving the telephone call does not seem to be consistent with honesty. In her 20 evidence she testified that she had little contact with Thiele. I infer from this that Thiele was not a close friend of hers. If this is so how could she entrust to him two cheques signed in blank. One does a thing like that only when dealing with people one knows well enough for honesty. Her behaviour therefore tends to contradict her statement that she had 25 little contact with Thiele. If I am right in this ■ issue then I question her bona fides in denying to know him well. Further she testified that subsequent to the transfer of the K8,000 she learnt that her husband's application for Exchange Control permission had in fact been turned down. This should have been disturbing news to her and one would 30 have expected her to fret over the realisation ■ that Thiele must have lied to her and therefore that the K8,000 must have been exported unlawfully. Her evidence shows neither that she entertained such worry nor that she did anything to enquire what consequences might follow the discovery by the authorities that the money had been sent without the 35 minister's permission. In my view her conduct in remaining passive is not consistent with that of a person who does a forbidden act in an honest belief and who later discovers that his belief was wrong. In the light of the foregoing I subscribe to Mr Heron, the State Advocate's contention that the claimed mistake was neither honest nor reasonable. As neither of the 40 two grounds impugning conviction is successful, I uphold the conviction and dismiss the appeal against conviction. On the question of sentence the appeal is that it was excessive. It is common knowledge that in the past two to three years there has been a disturbing number of prosecutions and subsequent convictions of people 45 under the Exchange Control Act. It goes without ■ saying that the illegal export of large sums of money in respect of which these people have been convicted has had an undoubted detrimental effect on the economy ■ ■ CHOMBA J of this Republic. It follows that every possible step has to be taken to deter people from committing this kind of offence. In consequence I am of the view that the sentence imposed on the appellant, although a deterrent one, was not out of proportion with the reprehensibleness of the appellant. 5 Moreover offences against the Exchange Control Act are serious and the Statute has seen it fit to prescribe maximum fines of K100,000 and I 1971 ZR p50 more. For these reasons I do not see any justification in interfering with the sentence. The whole appeal is accordingly dismissed. Appeal dismissed 10 ■