Judgment No SC. 20/2015 Civil Appeal No SC 127/13

1

 

 

REPORTABLE (26)

 

 

                        BIGKNOWS WAIROSI

v

THE STATE

 

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GOWORA JA & MAVANGIRA AJA

HARARE, MAY 29, 2014 & MAY 21, 2015

 

M Nkomo, for the appellant

E Makoto, for the State

 

GOWORA JA:          On 7 March 2011 the High Court convicted the appellant of one count of murder with actual intent to kill.  He was sentenced to death.  This is an automatic appeal against the conviction and sentence.

 

THE FACTS

                        The deceased, Ronald Wairosi, was aged nine at the time of his death.  He was the elder of the appellant’s two sons with his first wife.  The appellant and the children’s mother had divorced when the children were very young. The deceased and his younger brother Tawanda resided with their grandmother, the appellant’s mother in Chivakanenyama area in Hurungwe. The appellant lived in Banket with his new wife.

 

                        The only eye witness to the murder was Tawanda.  He gave evidence in camera as the court found that he was a vulnerable witness.  When the murder occurred he was aged seven.  He gave evidence two years later at the age of nine.  His evidence was to the following effect. On 11 June 2007 the appellant arrived at his grandmother’s homestead and informed his mother that he wanted to take the boys to Karoi to obtain birth certificates for them.  The following day, despite his grandmother’s protestations, the appellant left with the two boys.  He took them to Karoi.  In Karoi, they proceeded to Madiro Supermarket where they boarded a single cab truck with three male occupants.  The driver was alone in the front and the other two were seated at the back in the cab.  The three men were dressed in black attire.  The appellant and the two boys sat in the back of the pick-up truck.

 

 

From Karoi the vehicle travelled a considerable distance along Chiumbarukwe Road.  The driver stopped the vehicle by the roadside in a bushy area within the farming area.  The appellant and the two children disembarked.  The occupants of the vehicle remained in the vehicle which remained stationary.  The appellant and the children walked further into the bush. Once in the bush, the appellant picked up a stone and struck Ronald.  Tawanda ran off into the bush where he spent the night.  He was found wandering in the grazing area of Sandara Farm the following day by Munyaradzi Kondo and taken to the police where a report was made.  On 16 June 2007, Japhet Mauzeni, a security guard with Sandara Farm discovered the remains of the deceased in the grazing area whilst on patrol.  He made a report to the police who attended the scene and recovered the body.

 

The appellant’s mother gave evidence which corroborated that of Tawanda in relation to the appellant’s visit to her homestead. She confirmed that he had taken the two boys away alleging that he wanted to obtain birth certificates for them in Karoi. She said that he had returned to the homestead on 15 June 2007 with one child instead of two.  She asked him where the other child was and he narrated the events of the fateful day. The story he narrated to her was as follows:

“He then said that they were fighting him he then managed to grab Tawanda threw him away and the other remained. He then said that when they had remained he managed to grab an iron bar and he struck one of those two guys on the legs and the driver came out with a knife.  He said that he had fled with Tawanda. He then said that Ronald remained in the vehicle of the murderers. I then asked as to whether Ronald had been tied since he could not escape when the others did and he said that he did not check on that. When I asked him about Ronald he said that he could not check on that because he was also being fought at. After he said that I then started crying. When he told me that the other child had remained in the vehicle of these murderers I started crying telling him that I had advised him earlier on to leave the children because there was going to be a mobile registration and he could not take my advice.”

 

 

The mother also told the court that the appellant did not appear to have any injuries and that she only learnt of the death of Ronald when she went to Karoi Police Station to have a statement recorded by the police.  According to the witness the appellant had come back to her homestead on the Sunday with his wife.  He told her that the deceased was dead and that he would go to the police station to find out if the body had been recovered.  His mother told the court that he had lied to her about having been attacked and that she found out the truth when she went to the police station.  The telling fact is that the appellant did not challenge her evidence on what transpired after he returned to her homestead with one child instead of two.

 

Detective Sergeant Katsvere gave evidence to the effect that the deceased had been found on 18 June 2007.  He had proceeded to the scene where the deceased was found lying on the ground.  One of his ears was missing and beside the body was a large stone which had hair.  When the matter came to trial the stone which was produced no longer had any hair.

 

After recovery, the body of the deceased was taken for examination to a pathologist who prepared a report.  The post mortem report revealed that the deceased sustained the following injuries:-

1. fractured parietal bone measuring 3cm
2. fractured temporal bone measuring 4cm
3.  partially amputated(sic) right ear

 

The pathologist concluded that the deceased died as a result of head injuries. 

  

At the trial, the appellant submitted to the court a lengthy and detailed defence outline.  The evidence of the appellant was to a large extent consistent with his defence outline. There were however, major discrepancies between what was contained in his defence outline and his evidence.

 

In his defence outline he stated that he picked up his two sons from their grandmother intending to take them to Ceres Farm where he had recently obtained employment.  He stated that by the time he and the boys arrived in Karoi the last bus for Ceres had gone and he decided to hitch hike to the farm.  At about 1600 hours a truck pulled up at the supermarket where he and the children were waiting.  The driver of the vehicle indicated that he was going in that direction and the appellant and the children climbed in.  Apart from the driver there were two other gentlemen seated at the back.  The appellant and his children got into the back.

 

In his evidence he gave a completely different version.  He said that he had gone to Karoi with the boys to obtain birth certificates. He had gone to the registry office where he was informed that the mother was required and he had been advised to bring her the following day. He said the bus to Ceres Farm had left and he decided to go and board a lift.

 

In the defence outline he stated that after having travelled for a distance, the driver stopped the vehicle near Mureshi River.  One of the men at the back pulled out a gun and ordered Tawanda to disembark from the vehicle.  The appellant also tried to disembark and was threatened.  Ronald was being held by the other man, whose identity was later revealed as Mazheke.  After proceeding for another 200 metres the driver stopped the vehicle.  Mazheke struck the deceased twice on the head with an iron bar.  The gunman, whom appellant later found out was called Masunda was pointing the gun at the appellant.  After being struck the deceased collapsed.  Mazheke covered him with a blanket.  The vehicle took off.  At Ranrock Farm the driver stopped the vehicle and ordered the appellant to disembark.  He was threatened with death and ordered not to make any noise.  The appellant made his way to Ceres Farm where he related his ordeal to his sister and her husband.

 

 

In his evidence he did not say that Tawanda was threatened with a gun. Instead, he said that he is the one who was threatened when he protested about Tawanda being made to disembark from the vehicle, nor did he mention the distance that the vehicle travelled before Ronald was attacked. 

 

According to the defence outline and in his evidence, early the following morning the appellant proceeded to Karoi Police Station where he made a report.  The following day he received information that his younger son Tawanda had been found wandering in the bush.  After picking him up he went to Chivakenyama where his mother stayed to advise her of the events.  On his way back he passed through Magunje Police Station where he was informed that Ronald had been found dead at Sandara Farm.  Immediately thereafter, a truck containing the body of the deceased arrived at the police station.  The appellant was arrested and detained. 

He alleged that when interrogated he denied any involvement in the death of deceased.  He was subjected to torture for a period of three days and as a result he confessed to the crime.  A warned and cautioned statement was recorded from him by the police.

 

Tawanda’s evidence that the appellant took him and his brother away from home against the wishes of his grandmother tallies with that of the appellant and the grandmother.  He was emphatic that the appellant did not take his brother and himself to the births and deaths registry for the purpose of obtaining birth certificates.  This also accords with what the appellant said in his defence outline, when he said he had picked up the boys to take them to Ceres Farm where he had obtained employment. 

 

The evidence of the two is similar as regards the motor vehicle they boarded and the occupants, including where in the vehicle the appellant and his sons were seated.  The motor vehicle stopped to allow appellant and his children to disembark as suggested by Tawanda or to force Tawanda out leaving the appellant and his older son in the vehicle to facilitate the murder of the deceased by the occupants of the motor vehicle.

 

The learned trial judge was not satisfied that the evidence given by Tawanda in relation to the murder was reliable. He was of the view that certain aspects of the evidence contained inconsistencies which could not be relied on by the court in the absence of corroboration of that evidence from other sources.  He expressed his doubts as follows:

“… He seems to us a child bent on telling the truth even if it goes against the State case and his father. The police must have sought to produce a coherent story, but Tawanda refused to perjure himself but told a story which incriminates his own father in a manner different from that narrated in the State’s summary of his evidence. If he can not take the suggestion of the police he cannot therefore be giving evidence suggested to him by anyone. His story is not a product of fantasy or imagination. It is corroborated by common cause evidence. Ronald’s head had two wounds and he died of head injuries. He died in the bush Tawanda says their father walked them into. Tawanda himself was found in that bush. A stone was found near the deceased’s body. Recent case law has established that children do not have fantasies about things they do not know. They fantasise on things they encounter on a daily basis. Murder must surely be a strange concept in the mind of a seven year old. He cannot conjure up images of a murder and tell a story which accurately explains the death of his own brother which is generally supported, by witnesses whose evidence was admitted by the defence.”

 

And later on:

“While I agree with the majority that Tawanda did not give evidence suggested to him or out of fantasies, his evidence remains unsatisfactory. I would therefore agree with Mr Nkomo, but for different reasons, that his evidence should be treated with caution.”

 

 

 

                        After a careful analysis of the evidence given by Tawanda the learned trial judge remained of the view that it was not safe to rely on his evidence.  In terms of s 10 (2) of the High Court Act [Chapter 7:06] any question of fact arising out a criminal trial shall be decided by the majority of the members of the court.  The learned assessors however disagreed with the judge and found him a credible witness.  In view of the conclusion by the learned assessors sitting with the judge to the effect that Tawanda’s evidence could be relied on the appellant was convicted of murder with actual intent to kill.     

 THE SUFFICIENCY OF THE EVIDENCE ADDUCED ON BEHALF OF THE STATE.

It was contended on behalf of the appellant that given the age of the only eye witness, Tawanda, the court had misdirected itself in relying on his testimony in the absence of independent evidence establishing the requisite mens rea on the part of the appellant. Counsel argued further that the testimony of a child requires that it be treated with caution and, further to that, that it is settled that the evidence of a child requires corroboration.

 

                        The law with regard to the evidence of juveniles was examined in detail by EBRAHIM JA in S v Sibanda 1994(1) ZLR 394.[1]  In relation to the cautionary rule, the learned Judge of Appeal stated:

“Returning to the issue of the cautionary rule raised in the first ground of appeal, it is well established in such cases as R v Judson 1965 RLR 501, S v Mupfudza 1982 (1) ZLR 271 (S), S v Santos S-138-85(unreported), and S v Ponder 1989 (1) ZLR 235 (S), that it is advisable to require corroboration of the testimony of young children because their youth indicates immaturity of mind which may cause them to give ill-considered or misleading evidence-see the comments of YOUNG J in R v J 1958 (3) SA 699 (SR) at 702. However, our law, unlike English law, does not require corroboration. (See WATERMEYER CJ in R v W 1949(3) SA 772(A) at 781 and MCNALLY JA in S v Santos supra at 7-8). In W’s case the learned CHIEF JUSTICE, after remarking on the absence of a requirement for corroboration, added:

 

‘But this is only the position where the court is fully appreciative of the risks involved and where the merits of the complainant and the demerits of the accused as witnesses are beyond question.’

I take this to be the source of the cautionary rule.

What precisely are the risks involved in the acceptance of the evidence of children?

The liberal rules governing the acceptance of children’s evidence in our jurisdiction impose a duty on the court to be cognisant of potential objections to the evidence of children which may, or may not be valid according to the facts and circumstances of each case. In their useful book the Evidence of Children (Blackstone Press) at p 238, Spencer and Flin list six of the main objections to relying on children’s evidence. These are:

(a)        Children’s memories are unreliable;

1. Children are egocentric;
2. Children are highly suggestible;
3. Children have difficulty distinguishing fact from fantasy;
4. Children make false allegations, particularly of sexual assault;
5. Children do not understand the duty to tell the truth.’”

 

After a careful analysis of each of the listed objections the learned JUDGE concluded:[2]

“I have adopted this method of analysing the evidence precisely because I think a new and more specific approach to cases involving children is called for. It is not that there is anything intrinsically wrong with the present approach of merely seeking corroboration of the evidence of a child. No-one who reflects on the matter would doubt that this in most cases is the correct approach. But in approaching such cases with a single-minded eye towards seeking corroboration, the courts lose sight of the reasons for seeking it. This danger was noted by BARON ACJ in S v Mupfudza supra at 273E:

‘The court looks for corroboration for the evidence of a suspect witness. But-perhaps precisely because of the search for corroboration-trial courts frequently forget that the court must decide whether the witness is credible…….If (he is)not, the matter is at an end, and the question of corroboration of, or support for, his testimony does not arise…’

A rational decision as to the credibility of a witness (especially a child witness) can be arrived at only in the light of a proper analysis by means of testing it against likely shortcomings in such evidence in the manner suggested by Spencer and Flin op cit. To reach an intelligent conclusion in such an analysis it is necessary to apply, as they do, a certain amount of psychology and to be aware of recent advances in that discipline. This will undoubtedly mean an increase in the workload of judicial officers and the machinery of justice generally, but ways must be sought of accommodating this, as it is the price to be paid for professionally administering justice in an increasingly complex society.”

 

 

The gist of the analysis of the objections to the evidence of young children by the learned judge is aptly summarised by John Reid Rowland in his book Criminal Procedure in Zimbabwe at 21-9;

“(a) children’s memories are unreliable. They tend to have a good memory of central events and poor memory for detail and evidence of surrounding circumstances. Their memories however, tend to respond better to a sympathetic questioner;

(b)        Small children are indeed egocentric and as a result are less able to be objective about the truth than a more mature person;

(c)        Children are highly suggestible. This tendency can be minimised by use of questions designed to overcome known pitfalls, such as the propensity to give an inaccurate answer because it suits him better to do so, either because he wants to be finished with the process or wants to please the questioner;

(d)       Children have difficulty distinguishing fact from fiction although children do not fantasise over things that are beyond their own direct or indirect experience;

(e)        Children may not understand the duty to tell the truth. However one may not generalise on this point. The child’s age, intelligence and morality will affect his ability to understand the duty to tell the truth. Therefore the greater the difficulty the judicial officer has in ensuring that the child can distinguish between truth and untruth, the greater the care the court should show in accepting what the child says.”

   

                        The learned judge in the court a quo was alive to the need to treat the evidence of Tawanda with caution in view of his age. This is what the learned judge stated:

“…… A child’s evidence must be assessed as that of a child, but the court must ascertain its truthfulness, by comparing it with corroborative evidence, and other evidence led on the incident in question. I agree with them on how a child’s evidence must be assessed but do not agree that Tawanda’s evidence is sufficiently corroborated on whether or not he walked into the bush with the deceased and the accused, and saw the deceased crushing the deceased’s head with a stone. His statement that he was left by the motor vehicle tends to support the accused’s version of what happened before the deceased’s murder. It makes his evidence questionable on whether or not he witnessed the deceased’s murder. Hoffman & Zeffert 3^rd ed on South African Law of Evidence, dealing with the assessment of the evidence of a child at p 456 says:

 

‘the court is entitled to take into account any other features which show that the child’s evidence is unquestionably true, and the defence story false, but it should not ordinarily convict unless there is corroborative evidence which implicates the accused.

 

In this case, I am of the view that the corroborative evidence of Japhet Tauzeni and Munyaradzi does not implicate the accused but merely proves that the deceased and Tawanda must have been together at or near Sandara Farm.”

 

 

An analysis of the evidence of Tawanda based on the approach recommended in S v Sibanda(supra) becomes necessary. The gist of the evidence of Tawanda was that his father picked them up from their grandmother’s place on the pretext that he was taking them to Karoi in order to obtain birth certificates.  The witness stated that his father lied because they did not go to Karoi.  He stated that his grandmother had told the appellant that they should board a bus.  They did not.  Instead, they got into a blue pick-up truck with three occupants.  They travelled for a distance after which he, the appellant and his brother disembarked.  They walked into the bush and the appellant struck the deceased with a stone.  He then ran away.

 

                        It was contended by the appellant that his evidence was inconsistent.  He said that he had been left by the vehicle whilst his father and brother went into the bush.  It was also contended that in complete contradiction to this he had then told the court that he, his father and brother walked into the bush where he witnessed his father crush the deceased on the head with a stone. Due to these inconsistencies, it was argued, he was far away from the scene of the murder and could not have witnessed his father killing the deceased.

 

                        It cannot be gainsaid that the court a quo was itself critical of the very aspects of his evidence which the appellant is attacking. This emerges clearly from the   observations by the learned judge to the following effect:-

“The admission that he was ordered to disembark from the motor vehicle supports the accused’s claim that at some point in the journey Tawanda was ordered to disembark from the motor vehicle. If this is considered in the context of his having been left by the motor vehicle it has the effect of placing him away from the scene of the murder which Sergeant Nhari said was about 800 metres from the road. The majority of the court however believes he obviously made a mistake or was misunderstood, when he said he was left by the motor vehicle. That statement is in fact ambiguous as it can mean the motor vehicle left him, or that he was left positioned near the motor vehicle. When the court sought to clarify this issue Tawanda said the motor vehicle had left when the deceased was struck with a stone and he ran away.”

 

And later on the Judge stated:-

“The above demonstrates that the motor vehicle was parked by the side of the road when he, the deceased and their father walked into the bush. When he ran away the motor vehicle was no longer present.”

 

     

The learned trial judge was of the view that the witness had embellished his evidence.  This view was buttressed by the evidence of the grandmother to the effect that when the murder occurred Tawanda was in Grade 1. However, to the contrary, Tawanda told the court that he was not in school at the material time.  The trial judge also found his evidence to be questionable. He was of the view that there was no corroboration for the version that he observed the appellant striking the deceased with a stone. The learned judge was also of the view that his statement that he was left by the vehicle tended to corroborate the evidence of the appellant that he was made to disembark from the vehicle and was left behind.  Consequently, he could not have witnessed the murder of the deceased.

 

The evidence of Munyaradzi Kondo who found Tawanda wandering in the bush in Sandara Farm was admitted by consent.  Tawanda told the witness that the appellant, the deceased and he had been together and that he had last seen the other two in Sandara Farm.  The witness was looking for cattle, and the only reasonable inference is that Tawanda was discovered in the grazing area of the farm.  The evidence of Japhet Mauzeni was also admitted by consent.  On 16 June 2007 he was in the grazing area of Sandara Farm when he discovered the deceased.

 

            If one accepts that the appellant was telling the truth in the defence outline that the vehicle travelled a further 200 metres after Tawanda was made to disembark, this suggests that the vehicle was within a short distance from where Tawanda had been left as suggested by the appellant. 

It is common cause that Tawanda was found wandering in Sandara Farm.  The body of the deceased was discovered in Sandara Farm.  A large stone was found next to the body and the hair on the stone led the police officers who attended the scene to conclude that it was the murder weapon. Its weight was 4.718kg.  The post mortem report bears no reference to the stone as the alleged murder weapon.

 

There was no suggestion that Tawanda was prompted as to the nature of the murder weapon.  Indeed the learned judge found that he was not susceptible to suggestions by the police on the nature of the evidence that he should give.

      

As observed by the learned judge in the court a quo, Tawanda is a juvenile and at the time of the fateful events he was aged seven.  Due to his age, his evidence had to be treated with caution, due to the risks attendant upon the acceptance of the evidence of juveniles. There is no requirement that the evidence be corroborated.  However, his description of the murder weapon does receive some corroboration from the evidence. It accords with the injuries found at post mortem on the body and with the evidence of the police details who found a large stone lying near the body with hair on it.  

 

A comparative analysis of the evidence of the appellant points to even greater inconsistencies than those evident from the evidence of Tawanda. The appellant knew that the deceased was dead yet he made no effort to report to the police immediately after the attack.  He went to his sister to make a report but did not say that the deceased had been murdered.  He did not conduct a search for Tawanda. 

 

He did not tell the court that he had struck one of the so-called murderers with an iron bar which was the version he told his mother.  He told the court that he and Tawanda had been threatened with a firearm. He did not tell his mother of these alleged threats. He had also told the court that when he was made to disembark he had looked at his deceased child and started crying. In his testimony the appellant said that a few days after the incident he had gone to his mother’s homestead with Tawanda who had been recovered wandering in the bush. He never told his mother that when he left the vehicle Ronald was already dead.  He told the court that on 18 June 2007 he had gone to Magunje Police Station with his uncle “to check as to the status of his case.”  The police then told him that a body had been recovered at Sandara Farm and a vehicle had been dispatched to collect the body. Shortly thereafter the vehicle arrived with the body of the deceased.

 

The police details who gave evidence told the court that the appellant did not make a report on the alleged murder of the deceased by the three men in the vehicle and that the first report they received was on 18 June 2007 after the body of the deceased had been discovered in the bush at Sandara Farm.  The missing child had also not been reported to the police.

 

There is indeed an obvious conflict between the evidence of the appellant and Tawanda and the determination of the conflict will inform the court as to which of the two versions is the most probable. That should resolve the difficulty that confronted the court a quo as to whether Tawanda was embellishing his evidence.

 

The probabilities favour Tawanda’s version as opposed to that of the appellant.  It was unlikely that the appellant’s intention was to obtain birth certificates as he could not do so in the absence of the children’s mother.  The children’s grandmother had told him that there was going to be a process for mobile birth registration in the area and he needed the children’s mother to be present for him to obtain the birth certificates. His evidence that he had in fact made an attempt to obtain the documents is clearly an embellishment.

  

If the contention by the appellant that Tawanda was not telling the truth is accepted, the only logical conclusion would be that he was fantasizing about the events of that fateful day. The learned judge correctly stated that recent studies have shown that children do not fantasise about things that they have not experienced.  The question that cries for an answer is whether Tawanda would fantasise about the murder of his brother at the hands of his own father.  During the trial he stated that the police had tried to make him give a statement implicating the occupants of the vehicle and he had refused.

 

The learned judge stated that he accepted that Tawanda did not give evidence according to what was suggested to him or out of fantasy.  He found the evidence unsatisfactory because of inconsistencies.  I will quote the reasoning of the judge hereunder:

“I would therefore agree with Mr Nkomo, but for different reasons, that his evidence should be treated with caution. He for instance said he had never been to school, when Eneresi his grandmother said he was in grade one when his father took him away from her. He can in my view be similarly untruthful on other aspects of his evidence.

 

The state summary on Tawanda’s evidence is at variance with Tawanda’s evidence. He is there said to have seen the accused’s accomplices wearing black clothes, and the accused receiving money from the accomplices. It is there alleged that he heard the driver and the accused conversing about cutting the ear and the head as they pointed at the deceased. The state outline also alleges that the deceased remained in the truck held by one of the men while he and his father were ordered to disembark. He is alleged to have seen the driver coming out of the vehicle holding three knives, and the accused going to the vehicle where the deceased was being held. He is alleged to have thereafter witnessed a violent scene at the motor vehicle after which he ran away. The State did not ask Tawanda about these details. The defence did not cross examine him on them but put it to him that his evidence in court was different to what was recorded in his statement to the police. Tawanda’s statement to the police was not produced. The court cannot determine whether or not he would have confirmed what is alleged in the State’s summary of his evidence if he had been asked about them or given an opportunity to comment on them. A witness’s credibility cannot be affected by his not mentioning something if he is not asked about it, or if he has anything else to say relevant to the case.”

The learned judge went on to state:

“The difference between the state outline and the complainant’s or witness’s evidence during the trial cannot be held against the complainant or the witness, as they do not take part in the preparation of the State’s outline. The difference must however be satisfactorily explained as it will be fatal to the State’s case if it remains unexplained when the State closes its case. In S v Nicolle 1991 (1) ZLR 211 at 214B-G KORSAH JA commenting on the functions of the State’s and defence outlines, and the effect of the complainant’s departure from the State’s outline said:

 

‘Commenting on the importance of the part played by the respective outlines of cases in a criminal trial SQUIRES J said in S v Seda 1980 ZLR 109 (G) at 110H – 111A:

‘They perform a similar function to the pleadings in a civil trial, and serve not only to identify what may be in issue between the State and the accused, but to advise each of the substance of the matters that are in issue, with the obvious advantages this affords of avoiding delay in completing the trial. In addition, it must always be appreciated that just as any significant and unexplained departure by the accused in his evidence from the outline of the defence which he makes, may be a matter for comment or even adverse conclusions, so does such a consequence affect what is said by the State witnesses.’

While citing the above dictum of SQUIRES J with approval, I hasten to point out that whereas the outline of defence is prepared, from what the accused person, tells counsel, and is tendered in evidence with his approval, the outline of State case is not prepared on the instructions of the complainant and is certainly not approved by the complainant before it is tendered in evidence and does not constitute part of the complainant’s testimony. I would suggest that the reason for drawing an adverse conclusion when the outline of State case is seriously at variance with the evidence of the prosecution witnesses is that because of the conflict between the two a doubt is raised as to whether the State witnesses are being truthful. Such a conflict may easily be explained by the production of the complainant’s statement to the police. But if this is not done, so long as that conflict is unresolved at the end of the hearing, the benefit of the doubt must be accorded to the accused; for it would not be possible to say that the State has proved the case which it undertook from the onset to prove, and has therefore proved its case beyond a reasonable doubt.’”

 

                        In Ephias Chigova v State 1992 (2) ZLR 206 at 213 C to F KORSAH JA again commenting on discrepancies between the complainant’s evidence and the State’s outline said:

“While I agree that the State is bound to prove the ingredients of the offence it alleges, a précis of a case by the State is not to be given equal weight with the outline of defence on behalf of the accused. The reason for this is simple. The complainant has no control over what a policeman may find relevant enough to include in a précis. The précis is not her word and deed. She is not to be taken as having made categorical statements on matters which, though relevant, are not essential to establish the offence alleged. The complainant’s credibility is not to be assessed on apparent conflicts between her viva voce testimony and a summary of the case prepared by someone else.

 

The “defence outline”, however, is prepared at the behest of the accused and usually read over by, or to, him and then signed by him or on his behalf. A complainant cannot be discredited because of discrepancies between a summary of the State case and her testimony, in the same way as an accused who, having made categorical statements in his “defence outline”, testifies to something other than that which may tend to underscore the veracity or otherwise of the accused. To discredit a complainant because of discrepancies between the State outline and her testimony, the divergence between the two, must be so gross as to be utterly irreconcilable, or her testimony patently false.”

 

                        The weight to be attached to Tawanda’s evidence, must, in view of the irreconcilable variances between his evidence in court and what the State outline said he was going to tell the court, be carefully be considered.  

 

The learned judge proceeded to assess the evidence of Tawanda and concluded that the variance in the State outline and what he had said in his evidence had not been satisfactorily explained. It was the view of the learned trial judge that the variance had created a reasonable doubt in the state case which could only be resolved in the accused person’s favour.

 

In my view the dilemma with which the learned trial judge was plagued was easy to resolve on the criteria advocated in S v Sibanda (supra).  The court sought to treat Tawanda as an adult witness and assessed his evidence from that premise.

 

However, when his evidence is viewed in its totality within the context of the events of that day there is no suggestion that he is so concerned with himself that he was unable to be objective in telling the truth.  The issue of suggestibility was resolved by the learned judge when he stated that Tawanda refused to give evidence based on suggestions from the police. 

 

As stated earlier, the judge concluded that children do not fantasise about events they have not witnessed.  His story on the manner in which the deceased was struck was stark and devoid of frills.  He said that the appellant stuck the deceased on the head with a stone.  Frightened by this he ran away. He could have embellished his evidence by putting detail to the events.  He did not.  He gave a simple story.  

 

The issue of false allegations is admittedly the one that would cause the most difficulty where the evidence of a child is subjected to analysis.  The question the trial court should have asked itself is why a child would make false allegations of such a serious nature against his own father.  In his judgment, the learned trial judge commented thus when discussing the evidence of Tawanda and that of the appellant:

“On comparison Tawanda’s evidence is more credible than the accused’s for the following reasons. The accused lied when he told his mother that there were other passengers in the motor vehicle. He lied to his mother about fighting their alleged assailants. He in his evidence in court gave a different version which does not say he fought their assailants. He in it does not say he threw Tawanda out of the motor vehicle. He does not say himself he jumped out of the motor vehicle and ran away. This plus the general credibility of Tawanda as a witness satisfied the majority. It however did not remove the doubt I entertained on the reliability of his evidence.”(sic)

 

 

Once the learned trial judge found that the appellant had lied and that Tawanda was a more credible witness that should have been the end of the matter.  If the appellant lied about the manner in which Tawanda left the motor vehicle, it is inconceivable that his version of the attack on the deceased could be credible.

 

THE POST MORTEM REPORT

It was suggested on behalf of the appellant, that the murder weapon was not the stone recovered by the police because it did not have blood.  Although the police witnesses suggested that it had bits of hair when recovered, when it was produced in court the hair was missing. Much was made by defence counsel of the missing hair.  It was suggested that the deceased could not have been struck with that stone due to the missing hair.  It was also contended that the trial court erred in relying on the evidence of Tawanda as to the manner in which the deceased was killed when his evidence was not supported by the post mortem report compiled by the pathologist.

 

I do not find anything in the post mortem report which would lead to the conclusion that the evidence of Tawanda is in conflict with the report. Indeed, the trial court found that the report confirmed that two blows had been delivered to the deceased’s head. It was never suggested during the trial that the injuries found on the deceased were not consistent with a stone as opposed to an iron bar as claimed by the appellant.

 

As for the missing hair, the police witnesses conceded that the manner in which the stone had been stored was probably not the best.  It is however worth noting that the trial took place more than two years after the murder.  The evidence from the Detective Sergeant Nhari was that the hair had fallen off and that there was no other way that it could have been preserved.  The appellant did not during the trial seriously contradict that evidence.  Hair is degradable and its absence from the stone’s surface does not affect the probabilities that it could have been the murder weapon.      

 

WHETHER OR NOT THE STATE PROVED ITS CASE BEYOND A REASONABLE DOUBT

 

It is contended by the State that the evidence of Tawanda taken together with the evidence of the police and the post mortem report itself presents a very strong case which establishes proof beyond a reasonable doubt.  I agree. Proof beyond a reasonable doubt is not proof beyond any shadow of doubt. I am fortified in this view by the remarks of DUMBUTSHENA CJ in S v Isolano 1985 (1) ZLR 62 at 64F-65B to the following effect:

“In my view the degree of proof required in a criminal case has been fulfilled. In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), LORD DENNING described the degree of proof at 373H as follows:

 

“………….and for that purpose the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond a reasonable doubt, but nothing short of that will suffice.”

 

           

The doubt that remained in the mind of the trial judge was concerned with the evidence of Tawanda as to whether or not he remained by the vehicle when he disembarked.  This is due to the statement “I was left by the vehicle”.  The court took the statement to mean that he remained at the vehicle.  If the statement is examined within the context of his entire evidence it can only logically be taken to mean that the vehicle drove off without him.  To this statement is added his clear and unequivocal statement that the three of them had walked into the bush where he observed the appellant strike the deceased on the head with a stone.  Indeed, the inescapable conclusion is that the confusion in the testimony could have been attributed to inaccurate interpretation of the vernacular.  The learned assessors would have heard the vernacular and consequently understood the import of the evidence from Tawanda.  When it was put to him that he and the appellant had disembarked leaving the deceased behind he said that was not true.  He told the court that the police had told him to say that deceased had been killed by strange men.

 

I am in agreement with the submissions by state counsel that the lies told by the appellant actually buttress the evidence of the state witnesses that the deceased was killed by the appellant.  In preferring the evidence of Tawanda to that of the appellant, the court in fact accepted Tawanda’s evidence as a correct statement related to the events of that day.  In this case, the trial court would have been justified in finding corroboration in the lies told to it by the appellant.  This court has stated that lies told by an accused person can properly be taken as evidence to corroborate the evidence of state witnesses. [3]

  

Further, and in addition, the fact that the appellant told lies about the events of that fateful day is a factor that has to be considered when drawing inferences about his guilt. In S v Gijima 1986 (1) ZLR 33 DUMBUTSENA CJ said:

“In this case the fact that the appellant lied or gave false evidence is a factor to be drawn when drawing inferences of his guilt. In Broadhurst v Reginam [1964] All ER 111 at 120A-B, LORD DEVLIN, when considering inferences which may be drawn about the accused’s conduct and state of mind, said:

 

‘But if on the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.’”[4]

 

 

In this case inferences are to be drawn from the untruthfulness of the appellant and the totality of evidence pointing to his guilt.

CONCLUSION

 

In my view, the majority decision that the appellant was guilty of murder with actual intent cannot be assailed. The conviction was proper.

 

The court was not addressed on the question of sentence.  The court a quo having convicted the appellant of murder with actual intent to kill, found that there were no extenuating circumstances.  This court finds no extenuation. The appellant lied to his mother about the reason that he was taking the boys away.  He made repeated visits to the police to enquire about a child whom he knew was already dead in an effort to divert suspicion away from himself.  The court a quo was correct in finding that he was manipulating everyone including his own employer in order to achieve his ends.  The child was killed in a most gruesome manner.  He made his younger son witness the murder and in the view of this court his callousness was extreme. He is underserving of mercy.

 

Accordingly the appeal against both conviction and sentence is dismissed.   

 

 

ZIYAMBI JA:                       I agree

 

MAVANGIRA AJA:                       I agree         

 

 

Donsa-Nkomo & Mutangi Legal Practice, accused’s legal practitioners  

The Attorney General’s Office, the state’s counsel