Abdalla v. R. Court of Appeal Crim. App. 102 – D- 70; 12/8/70; Spry, V.P., Law and lutta, JJ. A. Judgment of the Court.

Abdalla v. R. Court of Appeal Crim. App. 102 – D- 70; 12/8/70; Spry, V.P., Law and lutta, JJ. A. Judgment of the Court.

The appellant was at all material times the senior Prison Officer in the Tabora Region, and as such ex-officio Chairman of the Prison Officers Staff Club. The profits from this Club were paid into a fund operated by the Club’s treasurer and the monies were kept in the prison safe by the appellant for safe custody. The fund was used principally for the purpose of making loans to prison officers. The appellant was convicted on various counts. He had admitted initialing the entry in the cash book relating to money allegedly stolen and was convicted of stealing. He was also convicted on two counts of obtaining money by false pretences for issuing post-dated cheques and ‘falsly pretending that he had sufficient funds in his personal account’. The High Court upheld the convictions while quashing others. On appeal to the Court of Appeal:

            Held: (1) “The learned Resident Magistrate convicted the appellant (of stealing) without any clear finding as to whether or not he disbelieved the appellant, but chiefly because the appellant in his cautioned statement had admitted responsibility for the entries in the cash book for which he had signed”. (2) (Conviction cannot be supported because) Firstly, an admission of responsibility for sums signed for is not an admission of having stolen those sums if a shortage is subsequently discovered. Secondly, if the admission of responsibility did amount to an admission of theft, then the appellant’s statement to this effect to a police officer was a confession and therefore inadmissible”. (3) “In our view the giving of a post-dated cheque is not a representation that there are sufficient funds to meet the cheque. It is a representation that when the cheque is presented on the future date shown on the cheque there will be funds to meet it. This is a representation as to a future event and cannot support a charge of obtaining money by false pretences, if the drawer o the cheque in fact has an account at the bank. It is a different matter of course if he has no account, because in drawing a cheque he is making the representation that he has an account, which is a false representation of an existing fact (R-V-Dent 42 C.A.R. 165), but her the appellant did have an account at the bank on which the

Cheque was drawn”. (4) “There only remains count 6, which related to an occasion when the appellant borrowed Shs. 100/= and gave a cheque of the same date in exchange, at a time when he knew he has insufficient funds in his account to meet the cheque. This could provide the basis of a charge of false pretences, but it is not clear from the evidence whether it was the pretences, but it is not clear from the evidence whether it was the pretence which induced the treasurer to part with the Shs. 100/= As the learned editor of Kenny’s “Outlines of Criminal Law” 18^th Ed. at page 249 says, the handing over of the property must have been actually caused the pretence, and prosecuting counsel should not omit to put an express question as to his. The actuation must be proved by direct evidence, not by inference. No such question was put in this case, and we are left in doubt whether the treasurer handed over the money because he was ordered to do so by his superior officer or because he was given a cheque by the appellant.” Appeal allowed.