S V CHIRUNGA 1998 (2) ZLR 601 (H)

Flynote

Criminal law — common law offences — housebreaking with intent to steal — employee of building society being let into premises after hours by cleaner — employee not authorised to be there during that time —housebreaking established

Criminal law — common law offences — theft — scheme whereby employee of building society fraudulently increased credit balances in customers' accounts — customers withdrawing money — appropriate charge should have been fraud — verdict of theft by false pretences sustainable

Criminal procedure — review — court's powers on review — alteration of verdict — substitution of verdict of theft by false pretences for verdict of theft — no application by State or submissions by defence — undesirability of altering verdict

Criminal procedure — verdict — competent verdict — charge of theft — whether conviction for theft by false pretences is proper

Headnote

The accused had been charged with housebreaking with intent to steal and theft, but convicted of theft only. He was an employee of a building society. Heconspired with a cleaner at the society's premises to let him into the premises after hours, at a time when he had no authority to be there. While there, he used the society's computer to make fictitious deposits in the accounts of two other persons. These persons thereafter withdrew money from their accounts. The magistrate acquitted the accused of housebreaking on the grounds that he had been allowed into the premises by the cleaner, who was lawfully inside.

Held, that the accused should have been convicted of housebreaking. Although the cleaner was lawfully in the premises, he had no right to permit the accused to enter. There was a "breaking" in the legal sense, the breaking was unlawful, and it was done with intent to commit an offence.

Held, further, that the crime the accused intended to commit was fraud, rather than theft, and he should have been charged with housebreaking with intent to commit fraud, and fraud. However, there had been a theft by false pretences committed when the two account holders withdrew the money. Theft by false pretences is a species of theft, the accused was a party to that theft, and a verdict of theft could on this basis be sustained.

Held, further, that it would not be proper to alter the verdict to one of theft by false pretences. This would be a verdict for a more serious offence, and the State had not applied for such an alteration in the verdict, nor had the accused made any submissions. Although the court was empowered on review to make such an alteration, in the circumstances this would be unfair.