S v CHAITEZVI 1992 (2) ZLR 38 (S)

Flynote

Criminal law — fraud — attempt — false document prepared but not yet presented — whether amounts to attempted fraud — potential prejudice — circumstances in which attempted fraud committed.

Headnote

The appellant was a credit controller in a company. A customer owed money to the company. The appellant contacted the customer and told him that if the customer paid him a certain sum of money he would make out a credit note falsely stating that he was owed a certain amount by the company for purchased goods he had returned. The customer said he would consider this proposition. He then contacted the general manager of the company and informed him what had happened. The customer agreed to help trap the appellant. He contacted the appellant and pretended to agree to his proposition. Using money given to him by the general manager, he handed over to the appellant the sum asked for by him. The customer was handed a false credit note by the appellant. As the appellant did not have the necessary authority to compile this credit note under the computerised accounting system of the company, this note would have been rejected by the computer. However, the appellant informed the customer that he had a friend in the computer department who would process the false note in return for money. The appellant was arrested soon after this transaction was completed. The appellant appealed against his conviction for fraud. It was held that on these facts the correct verdict was that of attempted fraud. Attempted fraud is a competent verdict on a charge of fraud and the conviction was altered accordingly to one of attempted fraud. In reaching this conclusion the court decided that:

1. Although the trapping of the appellant had forestalled the plan before the misrepresentation contained in the credit note was actually communicated to the company, the appellant had compiled the credit note with the intention that it be acted upon by the company to its prejudice. The fact that the customer only obtained the credit note in order to trap the appellant and had no intention of presenting the false credit note was immaterial as it is the intention of the deceiver which must be looked at.
2. Where the representee finds out about the intended fraud and sets a trap, if the representor does the act with the intention of defrauding, the crime of attempted fraud is still committed despite the fact that when the trap is sprung there is no risk at all that the representee could be misled.
3. The appellant had gone beyond the stage of mere preparation.

In the process of reaching this conclusion the court pointed out that:

• a) For the element of potential prejudice to be satisfied there must be a risk that prejudice could be caused. It is not required that there has to be a probability of harm, nor that prejudice would be caused.
• b) The question whether a person's conduct, as a whole, is sufficiently proximate to the commission of an offence as to have gone beyond the stage of mere preparation calls for a value judgment of a practical nature and is not determinable by the application of any hard and fast rule.