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WINDHOEK - Three judges of the Windhoek High Court in a review judgment on various cases on whether a charge of money-laundering in addition to that of a charge containing the element of dishonesty has issued a judgement explaining the offence of money-laundering.
Justices Christi Liebenberg, Naomi Shivute and Shafimana Uitele were tasked by Judge President Petrus Damaseb to determine whether an additional charge of money laundering upon a charge of an offence of theft, fraud or any charge that contains an element of dishonesty does not constitute a duplication of charges.
The inquiry resulted from nine review cases, which were dealt with in the magistrate’s court, in which the accused were charged with both the dishonest charge and a count of money laundering under the Prevention of Organised Crime Act (POCA).
In all instances, the accused were convicted on both counts, which raised the question of whether there was a duplication of charges.
The accused were either charged on the second offence under Section 4 of POCA that refers to perpetrators of the offence or Section 6 that deals with recipients of the stolen goods.
According to Judge Liebenberg who wrote the unanimous judgment, Section 4 indicates the perpetrator of the act (theft, fraud, etc.), can equally commit money laundering when he commits any further act with property being the proceeds of unlawful activities. Section 6 only applied to a person other than the one who committed the unlawful act, which in this case will constitutes a duplication of charges.
Explaining further, the judges said the context in which the issue will be decided is on the basis that ‘unlawful’ acquisition of property is a criminal offence, i.e. theft, fraud, possession, receiving, use of stolen property, either under common law or by statute which constitutes the original unlawful act.
What essentially must be considered, the judges said, is whether any subsequent or new act committed by the accused with such property constitutes an offence under either sections 4 or 6 of POCA.
If answered in the affirmative, the real question would then be whether a contravention under these sections constitute a separate offence and whether it amounts to an improper duplication of convictions.
POCA in the Namibian context provides that money-laundering may be committed if the proceeds are illegally derived from any offence and if the provisions are interpreted literally, it means that proceeds derived from any offence is punishable under POCA as money laundering, irrespective of the seriousness of the offence, the judges said and continued that in Namibia, there is no distinction between serious or less serious offences with the discretion solely with the prosecutor general on what charges to charge an accused.
Part 3 of POCA specifies the offence relating to money laundering and the sections relevant is 4 and 6, which is the disguising of unlawful origin of property and the acquisition, possession or use of proceeds of unlawful activities.
Section 4 makes provision for the prevention of any person to knowingly engage in the exchange of the proceeds of unlawful activities either by disguising the origin or assisting any person who has committed or commits an offence to avoid prosecution.
Section 6 on the other hand is aimed at preventing the acquisition, use or possession of the proceeds of stolen property.
This, the judges stated, clearly relates to the secondary acquisition by any other person other than the author of the offence of what constitutes the proceeds of an unlawful activity and not the primary acquisition committed by the original perpetrator.
As such, the judges reasoned, as regards Section 6, the author of the original offence (thief, fraudster) and the money launderer cannot be the same person.
Though an offence under money laundering is equally created under Section 6, it only applies to a person other than the one who committed the original offence, which will constitute a duplication of charges if the State prosecutes under both the original offence and a money laundering offence.
In the case of Section 4, if the perpetrator makes use of his unlawfully gained property to obtain other property to disguise the origin of the proceeds of unlawful activities, it constitutes a separate offence and is thus money laundering.
The judges said that although both sections create the offence of money laundering, the elements of each are clearly distinctive.
Roland Routh
2019-11-18 07:42:51 | 4 months ago
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