So as many expected, Director of Public Prosecutions Mutembo Nchito last week filed a notice of appeal in the Supreme Court against the acquittal of former Labour Minister Austin Liato after quashing his two year jail sentence slapped on him by the Magistrate Court.
Mr. Liato was acquitted and had his K2.1 million released to him in a matter he was charged with one count of being in possession of property suspected to be proceeds of crime contrary to section 71 (1) of the Forfeiture of Proceeds of Crime Act number 19 of 2010.
Particulars allege that Mr Liato on November 24 2011 did possess and conceal money at his farm in Mwembeshi, number L/Mpamba/44, amounting to K2.1 million reasonably suspected to be proceeds of crime.
A panel of three High Court judges, Annie Sharpe Phiri, Mwiinde Siavwapa and Chalwe M’chenga acquitted Liato on grounds that there was no evidence indicating the source of criminal activities.
In his appeal notice, Mr Nchito stated that the High Court erred in law when it held that to prove reasonable suspicion under Section 71 (1), the prosecution had to show the link between the source of the money or the accused to possible criminal conduct.
Mr Nchito further indicated that the High Court erred in law when it held that under Section 71 (2), the prosecution needed to prove that the accused had knowledge that the source of the money was as a result of criminal conduct.
He said the lower court erred in law when it also held that the prosecution’s burden of proof under section 71 (1) was not discharged as the State failed to adduce evidence upon which interference could be drawn that the money could reasonably be suspected to be proceeds of crime.
First of all, the onus is always on the prosecution to prove the case beyond all reasonable doubt.
Scrutiny of subsection 2 of Section 71 of the Forfeiture of Proceeds of Crime Act No 19 of 2010 does not suggest any reverse of this general proposition. From the wording of the subsection, it is clear that it is a defence for a person charged with an offence under subsection 1 to aver that he did not know that the money in his possession was derived from an unlawful activity.
As stated in the judgement by the High Court, though the provision creates a mental element to the offence, that is, a person must know that the money he is handling is proceeds of crime, it places no obligation on the accused person to negative or establish any if the ingredients of the offence.
Like any other defence, the onus is on the accused person who decides to rely on this defence to place before court evidence which the court can look at when considering whether the defence is available or not. In this case, Mr Liato did not raise the defence or even attempt to rely on it, it cannot, in the circumstances, be said that he failed to discharge the onus set by subsection 2 because there is no onus placed on the accused by subsection 2.
Further, the defence is available to anyone charged with the offence and it is not limited to cases where the suspected property or money was handled by a third party before it was handed over to the accused person. A person found in possession of money reasonably suspected to be proceeds of crime can be excused where he admit possession and says he was not aware or could not have known after making due inquiry or exercising due diligence, that the money was earned from unlawful activity.
This being the case, the High Court ruled that it was misdirection for Magistrate Chuulu to find that Mr Liato had failed to discharge the onus placed on him by Section 71 (2) of the Act when Mr Liato elected to remain silent.
The provision does not place onus on an elected person to satisfy the court of the legitimate origin of the money. It only places the onus of leading evidence on an accused person who decides to rely on the defence.
In cases such as this one, reasonable suspicion is assigned to the so called hypothetical person as demonstrated in the case of the Director of Public Prosecutions V Sharon Lee Brown. This case was brought under Section 82 of the Proceeds of Crime Act 1987 of Australia whose wording is similar to Section 71 of the Forfeiture of Proceeds of Crime, Act No 19 of 2010.
In that case, the respondent, a 20 year old woman living with her mother, who was in a de defacto relationship with a drug dealer and convicted murderer, had received in her account a sum of $ 17,0000 deposited by the said drug dealer. The respondent used the amount to make a deposit on a house and to purchase a car. She was acquitted when the court accepted the defence pleaded pursuant to subsection 2 that she had no reasonable grounds for suspecting that the money was derived from some form of unlawful activity.
The Director of Public Prosecutions appealed against the acquittal arguing that the proper test was whether a reasonable person, knowing what the accused knew would not have been suspicious that the money or property in question was proceeds of crime ad that the respondent had bit satisfied the onus. In other words, the arguments by the Director of Public Prosecutions was that because the appellant knew the donor if the funds was a drug dealer, she had reasonable suspicion that the money could have been proceeds of drug dealings by reason of which she had failed to prove that she was not suspicious.
In dismissing the appeal, the Court of Appeal held that the proper test was whether the accused person in fact had no suspicion that the money or property in question was proceeds of crime and whether the state of mind was reasonably based and that, in this case, there were sufficient facts for the magistrate to find that the defence had been made out.
Points to note from this case are that the source of the money had been investigated and established by the prosecution. The appellant also knew the person who deposited the money into her account to be drug dealer by which fact she was presumed to reasonably have had suspicion that the money could be proceeds of drug dealings.
The intention of the Legislature in enacting Section 82 of the Proceeds of Crime Act 1987 of Australia seems to have been to nail the mental element of the crime on the accused person, given the circumstances, holding a reasonable suspicion that the source of the property is criminal activity. Once that fact is proved beyond reasonable doubt by the prosecution, a conviction becomes competent.
It is however at that point that the accused person is given the opportunity to invoke the one and only defence provided by subsection 2 which if not pleaded will result in the inevitable conviction. On the other hand, the defence need not be pleaded if at the close of the prosecution case, the said mental element has not been proved beyond reasonable doubt. There cannot be a legitimate conviction based solely on the accused person’s decision not to invoke the defence and that decision should be subject of any adverse comment by the trial court.
The High Court Judges also noted that the submission by the State that guilt can be inferred from mere possession is misplaced as it is not applicable to cases under Section 71 of the Act. This is so because where the Legislature intends to exclude the mental element of the offence, it states so and one such example is to be found in Section 319 of the Penal Code. It will further be noted from that section that once possession of property reasonably suspected to have been stolen or unlawfully obtained has been established, sub section b specifically holds the person found in possession guilty if he has not given an account satisfactory to the court on how he came into possession of that property.
The fundamental difference between Section 71 (2) of the Act and Section 319 (b) of the Penal Code is that providing a defence, the Act gives an opportunity to the accused person to show that he did not possess the mental element necessary for the commission of the offence while Section 319 (b) looks to having the accused person justify the possession of the property.
The High Court stated that the onus shifts to the accused person only under Section 319 (b) of the Penal Code because mere possession of the property which may be reasonably be suspected of having been stolen or unlawfully obtained is sufficient without proof of the metal element.
In the appeal, the source of the money found in possession of Mr Liato was never established for anyone to expect him to reasonably suspect that it was proceeds of crime and so if the same test applied by the South Australian Court of Appeal is applied to this case, it will emerge that infact, no mental element was proved by the prosecution to warrant the invoking of Section 71 (2) of the Act.
It will therefore be interesting to see how this appeal holds up at the Supreme Court especially that it is one which has occupied public debate in Zambia for some time.
The author should have canvassed to represent Liato so that you get part of the loot. But fooolishly you have provided literature to another thief lawyer to file this in court on behalf of Liato.
Good Assignment for new lawyers. I wish I was lecturing you people, we have a lot a practical cases at hand including tribunals.
Who is the author of this article? Or is it LT’s opinion?
Has mutembo paid the State what he obtained dubiously? What moral right does he have to represent taxpayers when he is a bigger culprit!
This is what Ndobo calls lack of brains in PF, we are in a new era not unip where people were ignorant of the law, no one would have told us this in unip time, and Nchito aught to fired, his record is the worst, doesn’t Sata do progress review , a man who can win cases need to be fired, he is a drain on my our finances
Who can’t win cases
One thing that is clear is that the author of this article does not have the insight that the Supreme court judges possess.Freedom of expression is every Zambians right but it is wrong to deliberately mislead the public with personal opinions.
What the author is saying is that if the supreme rules contrary to his/her expectations then the public must deem that as suspicious. That’s very wrong.
Doesnt this article border on contempt? Why has the author not included his or her name? Just asking and thinking aloud!!!!
What contempt?? This is an opinion!!
The autor has rightly quoted: Section 319 (b) of the Penal Code is that providing a defence, the Act gives an opportunity to the accused person to show that he did not possess the mental element necessary for the commission of the offence while Section 319 (b) looks to having the accused person justify the possession of the property.
Liato should thus PROVIDE THE EVIDENCE THAT LEGITIMIZES HIS POSSESSION OF SUCH SUMS OF MONEY by showing a “paper-trail!!”
Hiding one’s money, whether under ground or under the sea has never been a crime and shall never be. The onus is on Mutembo (DPP) to prove that the money found at Liato’s farm was proceed of crime.
What is saddening though is the fact that Mutembo’s cases have nothing to do with Zambia but himself. He brings cases which he knows too well are fake. He prides in seeing his self-perceived enemies suffer attending court and seeing his shameless face. What law in the world or in Zambia forbids a citizen from getting a bank loan? NONE, yet Dr Nolle drags Mrs. Tandiwe Banda to court over her Mpundu Trust. Talk of RB’s Oil and Mwanawasa Stadium cases. These are all fake cases intended to enrich his fellow lawyers at the expense of medicines in our hospitals. He is a sadist.
am not a qualified legal person but this argument falls short of what i would consider an intelligent argument. With my little knowledge on law, i can can easily argue and win this case. Mutembo nchito should win it! The supreme court should overturn it! To begin with, the case referred to in this argument could be misplaced!
WHY SHOULD A THIEF GET AWAY WITH IT? TABLES SHOULD BE OVER TURNED
Liato should thus PROVIDE THE EVIDENCE THAT LEGITIMIZES HIS POSSESSION OF SUCH SUMS OF MONEY by showing a “paper-trail!!”
He can’t simply say na tolele fye! I.e. he simply picked up the money or that it fell onto his farm from the sky!!
LT Editor, are you sure that this posting is not bordering on subjudice of Court Proceedings. Reconsider the posting of this article. Don’t be like PF who have no respect for the laws of the country. Good legal opinion though.
This article is subjudice !
BAICHE SINCE WHEN IN OUR HISTORY DID ANYONE KEEP THAT AMOUNT OF MONEY AT HOME AND FOR WHAT?
AS I HAVE TOLD YOU LAWYERS MAKE THEIR MONEY THIS WAY NOT ANY OTHER WAY. WHAT DO YOU SEE HERE?
I REWST MY CASE.
How much does the law (if it exists) allow to keep at home? What you may call a lot of money for others it is not! So your question of asking “since when…” does not hold water. Dont you remember some politician had K2bn (un rebased) in a trunk for distribution to third term supporters at Mulungushi rock of authority?
Your article is too academic and simply shows why Mutembo’s Liato appeal may stand in the Supreme Court.
Yes, it might not be illegal
for Liato to keep that amount of money on him, if only he could prove that he had acquired that money from a legitimate means through bank statements or casino winnings. The burden is Liato’s to show that the money is his and was from legal sources. Otherwise the police will seize money and Liato will lose it all to the state even without the presence of drugs under asset forfeiture law.
By our laws, a person accused of a crime is never required to prove that they are not guilty, so it is always the burden of the state to prove the guilt of an accused beyond a reasonable doubt, but this is not true in the case of asset forfeiture.
The Burden of proof lies in the hands of the Prosecutors to prove beyond reasonable doubt that that which they seized is a proceed from crime.
Give us your opinion why you think Mutembo would win. Show us how the refered case is misplaced!
SATA, please in all you do, do not belittle the Church – especially The Catholic and the Jesuits.
This is an innocent, genuine and friendly warning. Your failure to take this advice would cause problems for all of us as citizens, including you.
Mr President, I have freely advised you despite not being on the payroll of advisors; so that in future you will not cry and say, “no one advised me”.
kabiye uko
The onus is on liato to show ‘paper trail,’ to prove where he got the money from simple. He could have gotten away with it years back but not now. go go Mutembo
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