ONUS OF PROOF ON STATE

S v Van der Linde [2016] 3 All SA 898 (GJ)

Criminal law – Fraudulent VAT refunds – Forgery – Money laundering – Uttering – Onus of proof – Onus rests upon the State to prove the guilt of the accused beyond reasonable doubt, after weighing up all the evidence before court and in a holistic manner – Even if an accused’s version is improbable, he is entitled to an acquittal if it is reasonably possibly true.

Evidence – Accomplice evidence – Cautionary rule – Evidence of an accomplice should be treated with caution and can be accepted only if there is independent corroboration of the evidence.

The accused was charged with 255 counts of fraud. He was acquitted and discharged but an appeal by the State succeeded and a trial de novo ensued.

The State’s case was that the accused acted as the accounting officer or representative of an accounting firm, and acting with common purpose with three others, operated a fraudulent VAT scheme. The accused was the mastermind behind the scheme to defraud SARS by claiming fraudulent tax refunds in respect of four entities during the period June 1997 to March 2005. The accused’s accounting firm was itself not registered for VAT and was used as a vessel to perpetrate the fraudulent VAT scheme against SARS.

The only real factual question to be determined was whether the version of the accomplice witnesses that the accused was integrally involved in the VAT scam should be believed.

Held – Evidence of an accomplice should be treated with caution and can be accepted only if there is independent corroboration of the evidence. While the two accomplice witnesses in this case were involved in various dishonest and underhand schemes, there were consistencies in their versions, and the existence of the scam and its modus operandi was further corroborated by the admitted documents. The evidence of an accomplice, although subject to the cautionary rule, needs not be wholly reliable, or wholly truthful. The ultimate test is whether after treating the evidence with the due circumspection, the court is satisfied beyond a reasonable doubt that the story told is essentially true.

The onus rests upon the State to prove the guilt of the accused beyond reasonable doubt, after weighing up all the evidence before court and in a holistic manner. Even if an accused’s version is improbable, he is entitled to an acquittal if it is reasonably possibly true. Taking the evidence into account in its totality, it was concluded that the State had indeed discharged its onus and the accused’s involvement in the VAT scam had been proven beyond reasonable doubt.

The accused was convicted on 255 counts of fraud, one count of forgery and one count of uttering. The Court set out the definitions of the offences of forgery and uttering. Forgery consists in unlawfully and intentionally making a false document to the actual or potential prejudice of another, while uttering consists of unlawfully and intentionally passing off a false document to the actual or potential prejudice of another.

Counts 263 to 326 were charges of money laundering in terms of section 4(b)(i) of the Prevention of Organised Crime Act 121 of 1998. Money laundering is the process by which the proceeds of crime are converted into assets which appear to have a legitimate origin so that they can be retained permanently, or recycled into further criminal enterprises. The accused was charged with section 4(b)(i) – concealing or disguising the nature and source of the funds which he knew to be from the proceeds of unlawful activities. In order to be found guilty of money laundering, there must be a clear intention to hide or conceal illicit money. The Court was not persuaded that by spending the proceeds of fraud, a conviction of money laundering should follow axiomatically. Instead, there had to be an element of concealment which must be proven or inferred. As a result, in the present case, the accused could not be found guilty on the money laundering counts.

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