THE STATE v SIMON 1980 ZLR 162 (G)

THE STATE v SIMON 1980 ZLR 162 (G)

1980 ZLR p162


Citation	1980 ZLR 162 (G)
Case No	Details not supplied
Court	General Division, Salisbury
Judge	Dumbutshena J
Heard	25th June, 1980
Judgment	25th June, 1980
Counsel	Details not supplied
Case Type	Criminal Review
Annotations	Link to case annotations

Flynote

Criminal procedure — splitting of charges — tests for — accused C impersonating policeman in order to commit robbery — whether may be charged with both impersonation and robbery.

Headnote

The accused, pretending to be a policeman, had purported to arrest two women and, while they were in his custody, he had used his ostensible authority to rob them of certain property. He was convicted in a magistrates Court of two _Dcounts of robbery and one of impersonating a policeman in contravention of section 70 (1) (a) of the Police Act [Chapter 98]. On review.

Held, setting aside the conviction for impersonation, that there had been an unlawful splitting of charges, since the robberies and the impersonation had been committed with one criminal intent and constituted one continuous _Ecriminal transaction, and the evidence necessary to establish the robberies involved proving the impersonation.

Cases cited

R v Tarewa, 1949 SR 158? 1949 (4) SA 347 (SR)?

R v Malako, 1959 (1) SA 569 (O)?

AttorneyGeneral v Jakubec, 1979 RLR 267 (AD)? 1980 (2) SA 884 (RAD)? _F

S v Brereton, 1970 (2) RLR 272 (AD)?

R v Peterson and Ors 1970 (1) RLR 49 (AD)? 1971 (2) SA 130 (R).

Judgment

Dumbutshena J: The accused was charged with two counts of robbery and one count of contravening section 70 (1) (a) of the Police _GAct [Chapter 98] as follows:

Firstly, Robbery in that upon the 2nd day of May, 1980, and on the dust road near Mucheke River in the Mucheke Township, Fort Victoria, in the said Province, the said accused did wrongfully and _Hunlawfully assault one Filomina Chagonda, a person there being, with open hands upon the face and with booted feet upon her body, and did then and there with force and violence take from the said

Filomina Chagonda a certain headdress and a blanket, the property

1980 ZLR p163

Dumbutshena J of and in the lawful possession of the said Filomina Chagonda, and thus the said accused did rob the said Filomina Chagonda of _Athe same.

Secondly, Charged with the crime of robbery in that upon the 2nd May, 1980, and on the dust road near Mucheke River in the Mucheke Township, Fort Victoria, in the said Province, the said accused did wrongfully and unlawfully assault Kerina Moyo, a person there being, _Band did forcibly grab her, and did then and there with force, violence and threats of violence take from the said Kerina Moyo the sum of two dollars, the property and in the lawful possession of the said Kerina Moyo and thus the said accused did rob the said Kerina Moyo of the same. _C

Thirdly, Charged with the crime of contravening section 70 (1) (a) of the Police Act [Chapter 98] in that upon the 2nd May, 1980, and at the Bus Terminus in Mucheke Township, Fort Victoria, in the said Province, the said accused, not being a member of the British South _DAfrica Police, did wrongfully and unlawfully pretend by words and conduct that he was a member of the British South Africa Police.

He pleaded not guilty and was found guilty on all three counts. He was sentenced to nine months’ imprisonment with labour on each of the two counts of robbery. Of the total of 18 months’ imprisonment with labour _Efor the two counts of robbery, six months were suspended for five years on condition that accused “does not commit within that period any offence involving dishonesty or assault for which he is sentenced to imprisonment without the option of a fine”. On count 3 he was sentenced to three months’ imprisonment with labour “the whole of which is to run _Fconcurrently with the sentences imposed on Courts 1 and 2”.

Briefly, the facts are that on the night in question the accused pretended to be a policeman. He went to a bus terminus accompanied by one Mutsena. The complainants were at the bus terminus. The accused _Gheld himself out as a policeman. He kicked the feet of the complainants and ordered them to stand up. He then accused them of being thieves and implied that he had arrested other thieves in that area. He ordered them off to the cells. When the complainants seemed to doubt the accused’s role as a policeman, he produced a book from his pocket and _Himplied that the book was his police identity document. The complainants went with accused into the bush, along the road. It appears from the evidence that accused demanded money whilst marching the complainants along the road. He sent the second complainant ahead with Mutsena. He himself demanded money from the first complainant, who

Dumbutshena J

told him she had none. He slapped her and threatened to take her to the cells and injure her. He then forcibly removed from her, her blanket and her jersey. She finally escaped. The accused hid the blanket. Accused _Awent to the second complainant who was with Mutsena. He threatened to beat her in the manner he had beaten up the first complainant unless she produced some money. The second complainant produced $2 from her bra. The accused took it from her.

On the evidence as disclosed in the record it is clear that accused held _Bhimself out as a policeman in order to induce the complainants to part with their property or money. The criminal acts thus separately charged, that is, the two counts of robbery on the one hand and the contravention of section 70 (1) (a) of the Police Act on the other hand, were done with one criminal intent and constituted one continuous criminal transaction, _Cand the evidence necessary to establish the two counts of robbery involved proving the impersonation. See R v Tarewa, 1949 SR 158? 1949 (4) SA 347 (SR) at 348? R v Malako, 1959 (1) SA 569 (O.).

The rule against the splitting of charges and the basic tests as _Dto whether or not there has or there has not been a splitting of charges, were laid down by LEWIS, JP, in the recent case of Attorney

General v Jakubec, 1979 RLR 267 (AD) at 270G? 1980 (2) SA 884 (ZRAD) at 886F, where he says:

“The rule against splitting of charges and the tests as to whether or not E there has been a splitting of charges were considered at length in the leading case of S v Grobler and Another, 1966 (1) SA 507 (AD), which was followed in the General Division of this Court by the former Chief Justice, BEADLE CJ, and GREENFIELD J, in the case of R v Peterson and Others, 1970 (1) RLR 49 (GD) at 51? 1971 (2) SA 130 (R) at 131. In the lastquoted case, BEADLE CJ, at page 51G (page 131D of the South African report), F after quoting with approval a passage in the judgment of WESSELS, JA, in Grobler’s case supra, said this:

‘In the earlier cases to which the learned Judge referred with approval, two basic tests are set out. One is that where a man commits two acts of which each standing alone would be criminal but does so with a single G intent, and both acts are necessary to carry out that intent, then he should only be convicted of one criminal offence. Another commonly applied test, which is a useful one in certain circumstances, is that the same evidence which is essential to prove one criminal act should not be used again as essential evidence to prove another. Where the essential evidence in such cases proves two criminal acts, only one should be charged’ H

There are thus two tests which may be applied and, as was pointed out in Grobler’s case at 523E, the test to be applied is that which, according to the circumstances and on a common sense basis, is best calculated to achieve the object of the rule.”

1980 ZLR p165

Dumbutshena J

I invited comments from the AttorneyGeneral on the improper or otherwise splitting of charges in the present case. I am indebted to the _ADirector of Public Prosecutions for his comments that appear below:

“It would appear from the record that the accused’s actions in holding him self out to be a policeman were designed to instil fear in the complainants with a view to the perpetration of further crimes upon them, namely robbery. As a result those actions, which would normally found a charge of contravening the Police Act are in this matter part and parcel of the subsequent B crimes.

The approach to be used in such cases was laid down by the Appellate Division in the case of S v Brereton,

1970 (2) RLR 272 (AD) where it was said at page 277A: C

‘In such cases, where the accused, in pursuance of the dominant intention, commits a number of offences, the proper thing to do is to charge him only with that offence which was his dominant purpose.’

In the circumstances, it is conceded that the conviction and sentence on count three, that of contravening section 70 (1) (a) of the Police Act [Chapter 98] should be set aside.” D I agree with those views.

A splitting of charges resulting in a duplication of convictions also results in prejudice to the accused when next he is convicted of a relevant _Eoffence and his previous convictions are taken into consideration for purposes of assessing sentence. See R v Peterson & Others, 1970 (1) RLR 49 (GD) at 51AE, 1971 (2) SA 130 (R) at 131AC.

In this case the learned magistrate improperly convicted the accused on all the three counts. As the offence of robbery is more serious than the _Fstatutory offence of impersonating a policeman, the conviction and sentence on count three should be set aside. The convictions and sentences on counts 1 and 2 are confirmed but the conviction and sentence or count 3 are set aside.

My brother Waddington agrees with this judgment.