Commentary by Edward Sampa
Full Case Can be Found HERE
THE FACTS
The respondent was charged, tried and convicted by the Subordinate Court of the first class on one count of possession of property suspected to be proceeds of crime contrary to section 71(1) of the forfeiture of proceeds of crime Act No. 19 of 2010 of the Laws of Zambia (“FPC ACT”). Briefly, the particulars of the offense where that the respondent, on the 24th of November, 2011 in the Lusaka Province of the Republic of Zambia, possessed and concealed money at his farm (L/Mpamba/44, Mwembeshi) amounting to K2,100, 000. These sums were suspected to be proceeds of crime. The money was concealed in two steel trunks buried under a concrete slab.
The respondent appealed to the High Court against the conviction in the Subordinate Court. Three puisne Judges sat for this Appeal[1]. The High court acquitted the respondent and the state appealed to the Supreme Court.
THE LEGAL ISSUES
The following were the key legal issues:
- Whether a predicate offence had to first be established in order to secure a conviction of possession of property suspected of being proceeds of crime contrary to section 71(1);
- What ‘reasonable suspicion’ entails for purposes of proving the ingredients of the offence under section 71(1) of the FPC;
- What the requisite standard of proof is to prove the reasonable suspicion under section 71(1)of the FPC in order to secure a conviction; and
- Whether section 71(2) of the FPC shifts the burden to prove the offence under section 71(1) from the prosecution to the accused person.
THE HOLDING
- To secure a conviction under section 71(1) of the FPC no predicate offense needs to be proved.
- ‘Reasonable Suspicion’ under section 71(1) of the FPC means a state of conjecture or surmise, where proof is lacking.
- Proof beyond reasonable doubt or reasonable suspicion was not contemplated or intended when section 71(1) of the FPC was formulated. The standard of proof is on a balance of probability.
- Section 71 (2) does not impose any obligation on the accused person to prove any ingredient of the offence under section 71 (1), but it does afford the accused an opportunity to explain the absence of reasonable grounds for the suspicion that the property he was found in possession of under section 71 (1) were proceeds of crime.
THE SIGNIFICANCE
The primary significance of this case is that this was the first time the Supreme Court has been called upon to provide a definition for the meaning of ‘reasonable suspicion’ as used in section 71(1) of the FPC Act. In arriving at this definition, the Supreme Court adopted the definition of ‘reasonable suspicion’ espoused in the Australian case of George v. Rockett[2] in which the High Court of Australia said reasonable suspicion means a state of conjecture or surmise, where proof is lacking. We agree with the Supreme Court’s position that the reasonable suspicion under section 71(1) entails that the suspicion ought to be based on some factual basis (which must be shown to exist at the time the suspicion is formed) which removes the subjectivity implicit in ordinary suspicion.[3]
Upon establishing the definition of ‘reasonable suspicion’, the court proceeded to set a standard of proof for such reasonable suspicion as it was not contemplated or intended when section 71(1) of the FPC was formulated: the terminology of the section uses the word ‘may’, namely, ‘may reasonably be suspected’. We are inclined to agree with the interpretation of the Supreme Court on this point. Had the section used the word ‘is’ rather than ‘may’ that would have resulted in the section requiring the suspicion to be conclusive, but it does not. Further as rightly pointed out by the Supreme court, section 78 of the FPC Act that states ‘save as otherwise provided in this act, any question of fact to be decided by the court proceedings under this Act is to be decided on the balance of probabilities’, lowers the standard of proof in the establishment of the cases envisioned by section 71 of the FPC act and is a deviation from the long standing principle of standard of proof in criminal matters established by Woomington since 1935.[4]
The Supreme Court further held that to secure a conviction of being in possession of property suspected of being proceeds of a crime, no predicate offense needs to be established. This is in line with section 72(3) of the FPC Act. Section 71 (3) provides that ‘the offence under subsection (1) is not predicted on proof of the commission of a serious offence or foreign serious offence’.
With respect to whether section 71(2) of the FPC Act shifts the burden to prove the offense under section 71 (1) from the prosecution to the accused, we agree with the Supreme Court’s holding that it does not impose any duty on the accused person to prove any ingredient of the offence under section 71(1). It does however, afford the accused an opportunity to explain the absence of reasonable grounds on his part of suspecting that the property he was found in possession of under section 71(1) was proceeds of crime if so desirous of defending himself.
The clarity given by the Supreme Court on the interpretation of section 71 of the FPC Act has the potential to encourage the state to investigate and prosecute a number of individuals who they may reasonably suspect to be in receipt of, possess, conceal or dispose of any money or other property in Zambia reasonably suspected to be proceeds of a crime. This can be an important tool in the fight against corruption.
[1] Ordinarily only one judge of the high court is appointed to sit for an appeal from subordinate courts.
[2] (1990) 170 CLR 104. This decision adopts the meaning of reasonable suspicion of Lord Devlin in Hussein v. Chong Fook Kan (1970) AC 942 at 948.
[3] This decision seems to be in line with the following authorities; Shauban Bin hassien and others v. Chong Fook Kan and another (1903) 3 ALL ER 1629; Queensland bacon v. Rees (1966) 115 CLR 266 , Streat v. Bauer & Blanco BC 9892 155.
[4] (1935) AC 462, 481.
