In
the matter between:
Crim
Appl. 5/89
MICHAEL
K. ELLISON Applicant
vs
THE
KING Respondent
CORAM:
N.
HANNAH, CJ
FOR
APPELLANT MR.
FLYNN
FOR
RESPONDENT MR.
TWALA
JUDGMENT
09/06/89
Hannah,CJ
Between
September 1985 and December 1986 a sum totalling E78 588-22 was
stolen from the South African Trade Mission in Mbabane. The appellant
was charged with that theft and after a trial lasting a number of
days was found guilty on fourty four counts of theft. He was
sentenced to a total of six years imprisonment of which two years
were conditionally suspended and was also ordered to compensate the
South African Government in the sum stolen. He now appeals against
conviction and sentence.
There
was no doubt on the evidence adduced before the court a quo that the
money was stolen from the Trade Mission and Mr. Flynn, for the
appellant, has not sought to argue to the contrary. Nor was there any
real doubt as to the method used to carry out the series of thefts
which occurred. The real issue was whether the prosecution had proved
beyond reasonable doubt that the appellant was the thief or whether,
as the defence contended, there was a reasonable possibility that
another employee at the Mission named Malan was the culprit.
The
appellant is a trained accountant and started working for the Trade
Mission in that capacity in May 1985. He was immediately responsible
2
to
the head of administration for his work. Initially that person was a
Mr.France Ellis but in July 1985 he was replaced by a Mr. Barend
Malan and then in December 1986 Mrs Helene Stapleford took over. It
was Mrs Stapleford's suspicions which led to the discovery of the
thefts.
The
system used to perpetrate the thefts was a simple one. The normal
practice was for the Trade Mission's trade accounts to be paid by
cheque but before a cheque could be issued an expenditure voucher had
to be prepared to authorise payment. The expenditure voucher is a
printed form with spaces for the particulars of the account to be
paid and the amount and it includes a certificate certifying that the
account is reasonable, has not previously been paid etc . The
certificate is signed by the secretary to the Mission who, at all
material times, was the appellant and countersigned by the Head of
Mission or someone acting on his behalf. Provision is then made for
describing the mode of payment. If cash is paid the receipient's
signature is required: if a cheque is issued the number and date of
the cheque has to be given.
Once
an expenditure voucher had been prepared, signed and countersigned
the next step was for a cheque to be drawn and signed. Each cheque
required two signatures and those authorised to sign were the Head of
Mission, Mr. J. Sterban, his deputy, Mr F. Kriek, the Head of
Administration and the appellant. The cheque was then sent to the
payee and ultimately the paid cheque would be returned by the bank
together with a statement of account. In the case of forty four
expenditure vouchers prepared and approved during the period in
question cheques were issued but although they were paid by the bank
they were not received by or paid to the payees described on the
vouchers. In twenty eight cases there was direct evidence that the
cheques were cashed by the appellant over the counter at the bank and
the only reasonable inference to be drawn, said the prosecution, was
that the remainder were dealt, with in the same way. What happened,
said the prosecution, was that the appellant, as secretary, would
prepare an expenditure voucher and sign it and would then either
obtain Kriek's signature approving
3
the
expenditure or forge Kriek's signature himself. He would then prepare
a cheque for payment and again would either obtain a counter
signature from one of the authorised officials or forge one himself.
He
would then cash the cheque over the counter and pocket the proceeds
and to cover his tracks would place a cancellation stamp in the
appropriate counterfoil in the cheque book.
The
prosecution produced the relevant expenditure vouchers, cheque book
counterfoils and bank statements and called a number of bank teller$
who testified that in the case of twenty eight of the cheques which
correspondend to the counteroils the appellant was the person who had
cashed the cheques.
The
evidence of these tellers varied in weight. Some were able to point
to the appellant's name which they had recorded on cash paid-out
sheets, others relied on their memory and in one case the teller
relied on the fact that it was the appellant who normally cashed
cheques for the Trade Mission. As for the paid cheques themselves the
prosecution evidence was that these had disappeared after being
returned by the bank to the Trade Mission, the suggestion being that
the appellant had disposed of them. But the appellant maintained that
he had been instructed to hand over to Malan unopened any envelopes
containing bank statements and unpaid cheques and this, he said, he
had done. According to the record this was never put to Malan but
having regard to the general tenor of his evidence there can be
little doubt that he would have denied giving such an instruction.
There were, however, three unpaid cheques traced and produced in
evidence and they are of considerable significance. Each was
signed by the appellant and each also bore the signature of Kriek but
there was unassailable evidence that the latter signature had been
forged.
On
the evidence before the court a quo there were only two persons who
could have carried out the thefts, namely the appellant and Malan,
and of these two the probabilities pointed overwhelmingly to the
appellant being the culprit. It was the appellant who prepared the
expenditure vouchers and the cheques
4
and
the opportunity for Malan to have forged Kriek's signature on such
documents time and again would appear to be very remote whereas the
appellant would have had every opportunity to do so.
Also,
not only is it difficult to see what Malan could have hoped to gain
from forging Kriek's signature when his own signature would have
sufficed but had he done so it was almost inevitable that the
appellant would have realised what was happening. Another significant
factor is the risk which Malan would have had to run in instructing
the appellant to cash these cheques as the appellant maintained he
had done and then hand over the proceeds to him. Had this happened it
would have been obvious to a trained accountant such as the appellant
that Malan must have been acting dishonestly. Then, of course, there
were the cancelled cheque counterfoils.
Faced
with the foregoing matters which, I may add, are by no means
exhaustive of the probabilities pointing to the appellant's guilt and
the poor impression which the appellant made on the learned
magistrate in the witness box Mr Flynn was , if I might respectfully
say so, obliged to grasp at straws when arguing the first ground of
appeal which is that the learned magistrate erred in accepting the
evidence of Malan and rejecting that of the appellant. His
submissions were in the main based on the fact that Malan was
inexperienced in accounting procedures and that accordingly the
appellant might have unwittingly cooperated in a dishonest scheme
devised by Malan thinking that Malan's strange behaviour was due to
lack of experience. However, in my view the evidence showed that
appellant took advantage of Malan's inexperience rather than that he
became its victim.
As
for the third ground of appeal, namely that the learned magistrate
attached too much significance to the fact that the appellant
resigned his employment with the Trade Mission shortly after Mrs
Stapleford's suspicion were aroused, it may be that the magistrate
did over emphasise the importance of this factor but it nonetheless
had its significance in the chronology of events and was not to be
ignored. In my view, the way the learned magistrate dealt with the
matter provides no ground for interfering with his finding
5
that
the appellant was guilty of theft.
The
only other ground of appeal which was advanced concerned sixteen of
the forty four counts in respect of which the prosecution led no
direct evidence that the appellant himself had cashed the cheques the
proceeds of which were stolen. Mr Flynn handed in a typed list of
these counts showing the amounts involved and certain other
references and the Court is indebted to him for his industry. In the
case of ten of these sixteen counts there was no evidence whatever
that the appellant cashed the cheques in question and in the case of
the other six the magistrate referred to and relied upon references
in the bank paid-out sheets produced by tellers but which the tellers
had not dealt with in their evidence. Mr Flynn submitted that this
was an impermissible exercise on the part of the magistrate and I
agree. There was no evidence before the court a quo that the tellers
called to give evidence had dealt with these six transactions and as
the documents did not prove themselves the learned magistrate should
have ignored them.
Mr
Flynn submits that without evidence that the appellant cashed the
cheques in question it was not open to the learned magistrate to
convict the appellant on these sixteen counts but I am of the view
that in a case such as the present one this does not constitute a
fatal lacuna. There was acceptable evidence of a system operated by
the appellant to commit the offence of theft on a /twenty number of
occasions as set out in the other/eight counts and that evidence, in
my view, sufficiently established that it was the appellant who
perpetrated the thefts alleged in the other sixteen counts where the
identical system was used.
There
was, in other words, such a similarity in the modus operandi on all
forty four counts as to establish the appellant's guilt on all even
though the evidence,
6
in
the case of sixteen of the counts, was not of the same probative
value as in the case of the others.
For
the foregoing reasons I am of the opinion that the appellant was
properly convicted by the court a quo and the appeal against
conviction must be dismissed.
Mr
Flynn has not sought to argue that grounds exist for interfering with
the sentence passed on the appellant but he has submitted that in
ordering the appellant to pay compensation to the South African
Government in the sum of E78, 588-22 the learned magistrate exceeded
his jurisdiction and that the order for compensation should be set
aside. That this submission has merit in recognised by the learned
magistrate who states in a note at the end of the record that he
wishes this court to consider incorporating payment of compensation
as one of the conditions of the suspension of part of the sentence.
The
award of compensation was made under section 321 of the Criminal
Procedure and Evidence Act and the proviso to subsection (1) of that
section reads:
"Provided
that the amount so awarded shall not exceed the civil jurisdiction of
such court." Section 16 (1) of
the Magistrate's Courts Act 1938 ( as amended) provides- "The
jurisdiction of magistrate's courts
of the first and second class in respect of causes of action shall be
in the case of-
(a)
courts
of the first class, all actions where neither party is not a Swazi,
and all other actions where the claim or value of the matter in
dispute does not exceed E2 000."
"Where
neither party is not a Swazi "means "where neither the
plaintiff nor the defendant is a non-Swazi"
(see Hlatshwayo v Hlatshwayo 1979/81 S.L.R. 177) and in such a case
it would seem
that, subject to section 29 of the Act,
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a
magistrate's court of the first class has unlimited jurisdiction in
civil cases. However, that was not the situation in the instant case
where the complainant in whose favour the compensation was awarded
was the South African Government and accordingly I hold that the
learned magistrate had no jurisdiction to award compensation in
excess of E2 000 and the award must be set aside.
I
have considered whether it would be right to accede to the
magistrate's request that payment of compensation should be made a
condition of the suspended portion of the sentence but have concluded
that it would not. I accept Mr Flynn's submission that to do so would
have the effect of increasing the severity of the sentence and the
circumstances of the case do not warrant such
a
course being taken. There is no undue prejudice to the complainant
who is left with the option of seeking redress by civil proceedings.
For
the reasons given the order of compensation is set aside but save for
that this appeal is dismissed.
N.
R. HANNAH
CHIEF
JUSTICE
