Recent possession (EVIDENCE)

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:

1. 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);
2. What ‘reasonable suspicion’ entails for purposes of proving the ingredients of the offence under section 71(1) of the FPC;
3. 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
4. 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

1. To secure a conviction under section 71(1) of the FPC no predicate offense needs to be proved.
2. ‘Reasonable Suspicion’ under section 71(1) of the FPC means a state of conjecture or surmise, where proof is lacking.
3. 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.
4. 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.