On Thursday, December 12 2013, news broke that the Lusaka High Court had quashed the conviction of former Labour Minister Austin Liato on one count of the offence of Possession of Property Suspected of being Proceeds of Crime.
The offence is contrary to Section 71 (1) of The Forfeiture of Proceeds of Crime Act No 19 of 2010.
This was after Mr Liato had appealed against his earlier conviction by the Lusaka Magistrate Court which sentenced him to 24 months in jail with hard labour and issued an order forfeiting the K2.1 billion and his farm No L/Mpamba/44 Mwembeshi.
The news of Mr Liato’s acquittal drew mixed reactions and some quarters are still debating the judgement delivered by three High Court Judges namely, Judge Mwiinde Siavwapa, Anne Phiri and Chalwe Mchenga.
Here is a detailed coverage of the landmark judgement:
The Judges stated that the onus in criminal cases is always on the prosecution to prove the case beyond all reasonable doubt. They further ruled that it was misdirection for Lusaka Resident Magistrate Alidah Chulu to find that Mr Liato had failed to discharge the onus placed on him by Section 71 (2) of the Act when he elected to remain silent in court.
They stated that the provision does not place any onus on the accused person to satisfy the court of the legitimate origin of the money.
The Judges noted that in the appeal they handled, 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.
The three Judges ruled that the particulars of the offence were bad or defective for duplicity because they alleged, in the same court, that the appellant did “possess and conceal money.”
They ruled that since possession of money that may reasonably be suspected of being proceeds of crime and concealing money that may reasonably be suspected of being proceeds of crime are two distinct offences, it was wrong to place both allegations in one count.
They said, “In all these situations, the money is said to be concealed because its ownership or origin is not what it seems to be on the face of it, one must look at its history to discern exactly whose it is and how it was earned.”
“It follows that the appellant (Mr Liato) was correctly charged with the offence of possession and not concealing even if the money was hidden in the ground.
The Judges noted that to establish the charge Mr Liato faced, the prosecutions team led by Director of Public Prosecutions Mutembo Nchito was required to prove that Mr Liato was in possession of the money and that the money could reasonably be suspected to be proceeds of crime.
They said on the evidence on record, it is not a dispute that Mr Liato was in possession of the money adding that even though the money was not found on his person, he had possession of the money because it was found on his farm and it was placed there at his instance or benefit which means he had constructive possession of the money.
“In her judgement, the learned Magistrate found that the circumstances surrounding the commission of the offence by Mr Liato gave rise to the irresistible reference that the money was derived from a crime. She did not set out what the circumstances were but it is apparent that it was the manner in which the money was buried and the failure by Mr Liato to give an explanation to the satisfaction of the court,” they judges said.
The Judges stated that there was no obligation on Mr Liato to satisfy the court on the legitimate origin of the money adding that the onus was on the prosecution to place before the court, evidence on which the suspicion was based.
They added that failure to render an explanation of the origin of the money cannot, in this case, be the basis for interring that the money was proceeds of crime.
“To prove reasonable suspicion that the money was proceeds of crime, the prosecution ought to link its source or the accused to possible criminal conduct,” they ruled.
They emphasized that the evidence that the Magistrate relied on to come to the conclusion that the money was proceeds of crime was the fact that it was found buried on Mr Liato’s farm.
“We find this unusual because she (Magistrate Chulu) also found that it was not mandatory for a person to always keep money in a bank and that one can keep money in any manner that they desired,” read part of the judgement.
“There being no evidence suggesting any unlawful origin of the money, the burying of the money on its own cannot be the basis upon which a trial court should come to the conclusion that it was earned from a unlawful act.
The Judges said it is common knowledge that there are many people who keep lawfully earned money at home and there is no doubt that such individuals do not leave that money lying about in their houses or wherever they keep it, they go to great lengths to secure it.
They said” there is evidence that Mr Liato’s personal and business bank accounts were inspected. We cannot tell the level of economic activity in those accounts because the statements from the bank were not presented in court. There was also evidence that Mr Liato was paid a gratuity from the National Assembly but the amounts were not disclosed in court.”
They added, “In the absence of evidence of Mr Liato not having capacity to earn the amount of money he was found with, we do not think it is reasonable to come to the conclusion that it was proceeds of crime merely because he buried rather than put in a bank account.
“In any case, the fact that the money is said to have borne tags from different banks is strong indication that it came from various accounts.
The judges stated that the Magistrate inference that the money could reasonably be suspected to be proceeds of crime was erroneous as the prosecution did not present any evidence to support such a finding.
The Judges allowed the appeal on all the four grounds and set aside the conviction and quashed the two year sentence.
The state through Attorney General Mumba Malila has made indications that it will appeal against Mr Liato’s acquittal.
ANY LAWYER WORTH HIS CREDENTIALS WILL RESERVE COMMENT OR OPINION IF THE CASE IS ON APPEAL.
THE CASE IS ON APPEAL FOR SUPREME COURT’S FINAL JUDGEMENT.
@Luapula Premier
The case was doomed before it started. Even in the Supreme Court the state will fail. In fact, it should not have been allowed to clog the court’s diary! Like it or not, the three judges will not resign as they serve an independent judiciary.
@ luapula premier did you read corectly:
“The Judges stated that the onus in criminal cases is always on the prosecution to prove the case beyond all reasonable doubt.”
It means that the clowns did not manage to tie-up money to the crime.
As to SC eventual Judgement (always provided that State apeals), be careful, even Justices are geting tired of the circuss.
sata wanted to make a quick name out of it but it has proved that he is a chancer, no plan of his own
This opinion is from the SAME three fellows!
They will not hide until they resign when Chikopa calls.
For a time being, it is Chicopa facing the prosecution!!!
The point of departure is, the prosecution failed to discharge its onus, therefore, Lyato is entiled to an acquittal. From the outset, it was not possible for the state to prove that the money was stolen, Lyato ought not to have been charged with the common-law crime of being in possession of money obtained from procedes of crime. In order for the state to have proven the crime they charged Lyato of, the identification of the owner or person entitled to the money is one of the most important prerequisities for the successfull prosecution of the charge the prosecutors brought against Lyato. Furthermore, the consequences of a failure by Lyato to submit evidence depended on the strength of the state case. The mere right of Lyato to not furnish evidence does not constitute a guilty verdict.
The prosecution intentionally and deliberately failed to observe the following elements of their case against Lyato: (a) receiving (b) money suspected to be from procedes of crime (c) which takes place unlawfully and (d) intentially which also includes the fact that Lyato had the knowledge that the money was indeed from the procedes of crime. If all these above elements were proven by the state beyond any reasonable doubts, then Lyato could have been found guilty by the trial court. The onus to prove the state case against the accused lies on the prosecutors not on the accused. The state’s inability to tender evidence before court through witnesses/expert witnesses should not be confused with Lyato’s right not to testify in his trial. They failed to show the court the origin of the…
Learned collegues at Law please educated me on what happens when one appeals to the next court. Does the case go for a fresh re-trial or just a review of what was ruled in the lower court? So in the case of Masumba is he required to take fresh plea and stuff in the next court or it will be just the judges reviewing what the ruling was in the lower court?
@Baba
What a good question, I have also been yearning to ask this question.
When a case is appealed to a higher court, the learned Judges will read through all the facts adduced by the lower court. No fresh pleas will be entered and no witnesses will be called. Both parties will not be allowed to produce fresh evidence to rely on other than what was already produced at a the court of first instance. And due to the complexity of the hearings at the court of appeal, only learned counsel and the learned judges will be in court for the hearing; as alluded earlier, no fresh witnesses, no new facts.
@ Spook
Nicely explained!
I now understand why the Supreme Court has referred the M’membe-Nchito/DBZ case back to the High Court.
“To prove reasonable suspicion that the money was proceeds of crime, the prosecution ought to link its source or the accused to possible criminal conduct,” they ruled.
They emphasized that the evidence that the Magistrate relied on to come to the conclusion that the money was proceeds of crime was the fact that it was found buried on Mr Liato’s farm.
“We find this unusual because she (Magistrate Chulu) also found that it was not mandatory for a person to always keep money in a bank and that one can keep money in any manner that they desired,” read part of the judgement………This sums it all up!
“The judges stated that the Magistrate inference that the money could reasonably be suspected to be proceeds of crime was erroneous as the prosecution did not present any evidence to support such a finding.” DPP stop wasting taxpayer’s money with useless appeals,this case is clear cut!
Interesting reading!!!
The Judges noted that in the appeal they handled, 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. ala kwina ama guys balisambilila
In Zambia crime pays! u dont even have to be a lawyer to know this bustard Stole! U people up there commenting for this judgement are just promoting corruption because every 1 will be burrying stolen money! look at the euro bond its worth 760 000 000 dollars 10% kick backs come to 7.6 Million dollars! 42 000 000 kr. Whats more saddening is its not you who will pay 4 this its your Children!
whats your point?
Liato was in a public office I dont even think his Gratuity came to that! We all know that money belongs to the poor people of Zambia now why should he go scot free. Coming to my point chinese investors give cash kickbacks to govt officials 1nce given a contract am sure that u know? this money if deposited in2 an account brings suspicion! so the best way is to bury it and tell some1 to unearth it with the police and go to jail, court, appeal and BANG! wa beula!!!!!!
And what I mean by crime pays is crime rewards or rather if u Sow 2.1 million you reap 2.1 billion you reap what you sow lol
The issue at hand is that it was not proven that the money was stolen, so if you steal and it is not proven that you stole then you go scot free.
This is a clear judgement!!
even got my mathwrong it comes to 76 million dollars 425 000 000 kr
Use a calculator!
Clear as daylight.
He was given kick baks, but no proof, so leave alone to get more FAT..!!!
Is it reasonably in order to bury K2.1billion on a farm? Is it reasonably in order for the accused not to reveal the source of the K2.1billion?
In the eyes of the zambian public, its not reasonably in order and i agree!!! No matter what the judges say!
“We find this unusual because she (Magistrate Chulu) also found that it was not mandatory for a person to always keep money in a bank and that one can keep money in any manner that they desired,” read part of the judgement.
I do not have bank account, credit card, charge card or cheque book.
Does it mean that I am criminal?
On the other hand, no body can still my identity and run away with my cash, I enjoy watching you smart people waiting in the rain to colect your own money.
Actualy,
I am thinking to avail drawing of my farm to DPP with big X marking the spot where is the money just before planting season. You never know I might save some work.
This Happens when you have an over excited DPP who can’t research deeply. Judges work on Facts presented not Speculation, the prosecution Team failed to Link the Money to any Crime. The Lower Court also correctly made the Judgement as Liato decide to be silent, meaning the Charges were upheld in the interim. Good Strategy by the Defence Team Bo Liato nice piece of work.
any sane lawyer would know that the state laywers were too dull..kekekee
Fire that DPP please the is useless he will lose all those cases better learned lawyers are exposing him day in day out.
Students doing Law at UNZA am still waiting for you to educate me on my earlier question I would be most grateful
Baba see the reply to your question above. Unza students are not the only ones capable of giving you the answer. In any case, the answer to this question is not taught in Law School, but post Law School; at LPC (Law Practice) level.
Any conviction requires evidence. Proof beyond any reasonable doubt. What evidence is there that FAT Liato stole the money? If he stole were is the proof? How many have got money which they have not taken to the bank? By law, what is the maximum amount of money that one keep at home, farm or any other secure place in Zambia? How long should one hoard the money? Are there guidelines regarding how individuals are suppose to secure their monies? Keeping your money in the bank, a safe at home, a shop, a pandora box, in an empty coffee tin, in a plastic bag, in a dugout hole, in a pillow, in one’s dirt pants, bra, or any place one deems secure is one’s sole choice. Individuals are not obliged to let anyone know where and how they have secured their money. His case is malnourished of evidence.
Any conviction requires evidence. Proof beyond any reasonable doubt. What evidence is there that FAT Liato stole the money? If he stole, were is the proof? How many have got money which they have not taken to the bank? By law, what is the maximum amount of money that one can keep at home, farm or any other secure place in Zambia? How long should one hoard the money? Are there guidelines regarding how individuals are suppose to secure their monies? Keeping your money in the bank, a safe at home, a shop, a pandora box, in an empty coffee tin, in a plastic bag, a pillow, in a dugout hole, in one’s dirt pants, bra, or any place one deems secure is one’s sole choice. Individuals are not obliged to let anyone know where and how they have secured their money. His case is malnourished of evidence.
Justice Vs Injustice: On spot, Bulls eye!!
GBM AND WINTER WERE SECRETLY CLEARED BY ACC OF THEIR CORRUPT ALLEGATIONS. ZAMBIANS STILL LEFT IN THE DARK!!!!!!!!!!!!!!!!!
That how it goes. The guilty shall be set free, while the innocent shall go in!!! What matters is where you step and the juju you have to silence any knowledgeable judge!!
I think that there is more to law than mare justice. I believe that Supreme Court judges ruling will be based on interpretation of the law in relation to other laws of Zambia. If a kaponya, selling mishanga, and known to have a business capital in the range of KR500 (five hundred Kwacha), was found in possession of a fifty thousand US dollars car and bought a house in Parklands, Kitwe, do we really need the DPP to prove that he stole money? If such reason will blind us, then you better stop crying because we shall have PF guys burrying millions of Kwachas if they lost with no convictions. Moral philosophy needs its work here. If you are educators you will probably need to read more about Jean Piaget, Lawrence Kolberg and Abraham Maslow. Search for these guys lesson on morality
I love your articulation. But the concern of the Liato court is not what you have alluded to. Granted Money leaves a paper trail, just as the exchange of property. When you sell and buy a car or house, plot etc, there is supposed to be evidence of you having done so. It is not the duty of the High Court to trace this paper trail in connection with Liato. It was the duty of the Court of first instance. Therefore, the court made the conclusion based on the facts available to them as adduced by the lower court. It is not their duty to do the work of the prosecution.