Criminal matter (EVIDENCE) https://old.zimlii.org/taxonomy/term/10474/all en S v Walusa (HH 677-20, CA 250/18) [2020] ZWHHC 677 (02 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/677 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>BRIAN WALUSA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA &amp; CHIKOWERO JJ</p> <p>HARARE, 12 October &amp; 2 November 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p><em>Pesanai</em>, for the appellant</p> <p><em>Nyahunzvi</em>, for the respondent</p> <p> </p> <p> </p> <p>            MUZOFA J: The appellant was convicted after a trial by a magistrate sitting at the Mutoko Magistrates Court on four counts of contravening s 60 A (3) (a) of the Electricity Act [<em>Chapter 13:19</em>]. He appeared in court with two co accused persons. The first accused was acquitted, the second and third accused persons were convicted. The appellant was the second accused person. All counts were treated as one for purposes of sentence. Each of them was sentenced to 11 years imprisonment of which 1-year imprisonment was suspended on condition of restitution. The court also ordered   the return of the transformer oil to ZESA and all the tools used in the commission of the offence were forfeited to the State. He appeals against both conviction and sentence.</p> <p>             On 22 July 2017 one Silver Nyakusengwa “Silver” a caretaker at Kotwa High School woke up early around 4 a.m. He went outside his house. He heard some sounds by the transformer and subsequently someone jumping over the gate. He raised alarm with the guards. He then left for Marondera. The police were called and 6 containers were found near the transformer. Five of the containers were full of transformer oil and one was a quarter full. The containers were inscribed some initials TN, TMT and Kings. Police investigations revealed that the containers were in the custody of William Katsande ‘William’, the first accused before the trial court. William advised the police that he had given the containers to the appellant and the third accused. These two used to supply him with diesel. He occasionally provided them with containers for use to supply him with diesel. This is how the appellant was arrested. The appellant and the third accused later made indications of the other three places where they drained transformer oil.</p> <p>            The appellant denied the offences. His defence was a bare denial, no details were given. However, in cross examining the State witnesses, he challenged the indications and the statements he allegedly made. He said the indications were not made freely and voluntarily.</p> <p>            In its judgment the trial court acquitted the first accused on the basis that the evidence established that he supplied the other two accused persons with containers. The provision of the containers was for the supply of diesel not transformer oil. In respect of the appellant and the co-accused the trial court relied on the indications and the containers recovered from one of the scenes of crime. It ruled that the indications were freely and voluntarily made.</p> <p>            The appellant’s grounds of appeal against conviction raise two issues. Firstly, that the trial court misdirected itself in convicting the appellant on circumstantial evidence which did not give rise to the one inference that the appellant committed the offence. Secondly, that the trial court erred by accepting that the challenged indications and photographs were admissible in evidence.</p> <p>            In respect of sentence, that the court failed to explain in detail the meaning of special circumstances. In addition, it was alleged that the court should have found special circumstances in this matter.</p> <p>            The admissibility of indications and statements made by an accused is regulated by s 256 of the Criminal Procedure &amp; Evidence Act [<em>Chapter 9:07</em>]</p> <p>“1)       Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest or after committal and whether reduced into writing or not...”</p> <p> </p> <p>A statement made by an accused includes an oral or written statement and indications. The section requires that there must be proof that the statements that the State wishes to rely on was made freely and voluntarily. In the case of an unconfirmed statement, the only way to establish the admissibility of a statement in criminal proceedings is through a trial within a trial. It is in that process that the Magistrate then makes a ruling after hearing all the evidence relating to the making of the statements. It is a gross irregularity for a Magistrate to make a finding on the statement without resorting to a trial within a trial. See <em>S </em>v<em>Mazano and Another </em>2000 (1) ZLR 347(HC).  </p> <p>            During the trial, the appellant told the court that he made the indications under duress. More specifically, he said he was assaulted by the police who led him to the scenes of crime and advised him what to do and say. On the day the indications were made, he simply complied for fear of further ramifications. He was photographed while making the indications. The photographs were produced at the trial.</p> <p>The State led evidence from six witnesses. The first witness was from ZESA. His evidence established the commission of the offence. He provided transport at the time the appellant went for indications. The indications were made in his presence. He said the appellant made the indications freely and voluntarily. Under cross examination the appellant disputed that piece of evidence. Other witnesses gave evidence including Nyakusengwa of Kotwa High School. He was present when the indications were made. He said the appellant freely made the indications. Appellant disputed this. Similarly, Keith Enani a ZESA artisan’s evidence on the voluntariness of the indications was disputed by the appellant. Despite the clarion call for a trial within a trial it did not occur to the prosecution to conduct it. The prosecutor happily called the investigating officers. The prosecutor had the audacity to ask the investigating officer to comment on the challenge by the appellant. The following exchange took place at p 45 of the record. </p> <p>            “Q.      2ndaccused said he did not drain the transformer oil.</p> <p> </p> <ol> <li>He is lying to the court. If he did not, he would not have made indications which were made freely and voluntarily. Further I did not know of the Kotwa hospital and Kotwa location which were drained they led me there.</li> </ol> <p> </p> <p>Q.        2ndaccused said you advised them to point to the areas drained oil</p> <p> </p> <p>A.        He is lying because I could not force them when they led me to other places where oil was drained. </p> <p> </p> <p>Q.        2ndaccused said you forced them to go for indications</p> <p> </p> <p>A.        That’s a lie, 2ndand 3rdaccused made indications freely and voluntarily.”</p> <p> </p> <p> The exchange shows that the State was aware that the indications were challenged including the photographs that were produced. The standard of prosecution in this case did not serve the interests of justice. It actually compromised the proper delivery of justice. A diligent prosecutor in such circumstances should have applied for a trial within a trial to be conducted. It is for the State to establish the conditions of admissibility. In this case the State failed. </p> <p> In its judgment, the trial court highlighted that the appellant challenged the indications. However, it dismissed the challenge in one sentence that, </p> <p>“The two accused persons however told the court that they were heavily assaulted by the police for them to make confessions. They made these allegations during trial but when they appeared in court for initial remand, they never advised the court of same. When they were asked if they had complaints against police (sic).”</p> <p> </p> <p>            The finding is misdirected. When an accused person appears in court on initial remand, he is expected to register any complaints against the police. The finding by the trial court assumes that when the appellant appeared for initial remand, he had already made the indications. There was nothing before the court to support this conclusion. It was based on conjecture. A finding on the admissibility of a statement cannot be made save after a trial within a trial. It does not matter that the accused’s allegations are incredible. Similarly, its does not matter that some witnesses observed the accused making the indications and concluded that the indications were made freely and voluntarily as in this case. The purpose of a trial within a trial is to establish whether before and during the making of the indications the accused was not subjected to some form of influence to make the indications. Thus, in the event where some influence is borne on the accused before the making of the indications, those who witness the making of the indications may not even know about the unlawful influence. </p> <p>            The failure to properly determine the admissibility of the indications in a trial within a trial is a misdirection. The evidence of the utterances made during the indications cannot be relied on in this case. What remained before the court is the fact that transformer oil was stolen from the four places without evidence linking the appellant to the offences. The first ground of appeal succeeds.</p> <p>            The only piece of evidence that remained before the court were the containers. The court accepted that the containers were given to the appellant and the third accused by the first accused. This court’s task   is to determine if the trial court applied the law on circumstantial evidence correctly.  </p> <p>The leading case on circumstantial evidence is <em>R</em>v<em>Blom</em>1939 AD 188 at 202 – 203 which outlines how circumstantial evidence should be treated by the trial court in criminal matters. The cardinal principles are that;</p> <ol> <li> the inference sought to be drawn must be consistent with all proved facts. If not, the inference cannot be drawn</li> <li>the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is the correct one. See also M<em>arange &amp; Others</em>1991 (1) ZLR 244 (S).</li> </ol> <p>A court can return a verdict of guilty based on circumstantial evidence only see <em>S</em>v <em>Shonhiwa</em>1987 (1) ZLR 215 (S).</p> <p> I find no misdirection in the court’s finding. There was evidence that the first accused person was a diesel buyer. He used to borrow some peoples’ containers for use. The appellant and the third accused used to sell diesel to the first accused. The same containers given to the appellant and the third accused were found at Kotwa High School with transformer oil. Transformer oil had been stolen at that place.</p> <p>            The only inference is that the appellant and the third accused drained the transformer oil from the Kotwa High School transformer. The inference is consistent with the proved facts and admits of no other inference. The appellant did not indicate if he in turn gave the containers to someone else. </p> <p>            The second, third and fourth counts depended on the indications. The appellant benefits from the sloppy prosecution. He can only be liable in respect of the first count.</p> <p>            In respect of sentence. The trial court is impugned for not fully explaining the meaning of special circumstances.</p> <p>The ground of appeal makes a subtle concession that an explanation was given, although it lacked detail. The submissions are not supported by the record of proceedings. At p 77 of the record there is an indication that special circumstances were dealt with. Unfortunately, the trial court did not fully record what transpired. A Magistrate Court is a court of record. Therefore, a magistrate presiding over a matter must record everything that takes place during the proceedings. As matters stand this court is unable to tell what the explanation was all about.</p> <p>However, the non-recording is not fatal to the proceedings. The appellant confirms that there was an explanation. I find no misdirection in the court’s finding that there were no special circumstances. There was nothing peculiar to the commission of the offence. I did not hear appellant’s counsel refer to even a single special circumstance that the appeal court could consider. Indeed, the circumstances of this case admit of no special circumstances.</p> <p>            The offence that the appellant stood convicted of comes with a minimum mandatory sentence of 10 years where there are no special circumstances. Since the drained transformer oil in the 1stcount was recovered it is unnecessary to order restitution.</p> <p>            </p> <p>From the foregoing the following order is made.</p> <ol> <li>The appeal against conviction and sentence in the 2nd,3rdand 4thcounts is allowed. </li> <li>The convictions and sentence are set aside and substituted as follows,</li> </ol> <p>‘Not Guilty and Acquitted’</p> <ol> <li>The appeal against conviction in the 1stcount is dismissed.</li> <li>The appeal against sentence partially succeeds. The sentence is altered as follows</li> </ol> <p>‘i.  10 years imprisonment. </p> <p>ii. The clerk of court is ordered to return the recovered transformer oil to ZESA.</p> <p>iii. All the recovered tools used in the commission of the offence are forfeited to the State.’</p> <p> </p> <p><em>IEG Musimbe &amp; Partners</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p>CHIKOWERO J Agrees ………………………..</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/677/2020-zwhhc-677.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26612">2020-zwhhc-677.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/677/2020-zwhhc-677.pdf" type="application/pdf; length=122084">2020-zwhhc-677.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/theft">Theft</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/admissibility-evidence">Admissibility of evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/circumstantial-evidence">Circumstantial (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-evidence">Criminal matter (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 25 Nov 2020 09:51:52 +0000 Sandra 9953 at https://old.zimlii.org S v Manjoro (HMA 48-20, CRB 89/17) [2020] ZWMSVHC 48 (18 September 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/48 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p> </p> <p>Versus</p> <p> </p> <p>WONDERFUL MANJORO</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J</p> <p>MASVINGO 22 JULY, 7, 8, 17 OCTOBER, 15 NOVEMBER, 2019 20 JANUARY, 21 MAY,</p> <p>          16 JULY &amp; 18 SEPTEMBER, 2020</p> <p> </p> <p> </p> <p>                                                                </p> <p><strong>Assessors </strong></p> <ol> <li>Mrs Chademana</li> <li>Mr Mushuku</li> </ol> <p> </p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p> </p> <p><em>Ms M. Mutumhe</em>, for the state</p> <p><em>Mr G. Bwanya, </em>for the accused</p> <p> </p> <p> </p> <p> </p> <p>MAWADZE J:           This was a very protracted trial which commenced on 22 July, 2019 and the defence witness only testified on 16 July 2020, 2020 after which judgment was postponed to today 18th September, 2020. During course of the trial, a trial within a trial was held for the determination of the admission of a warned and cautioned statement and the accompanying video, now exhibits 5(a) and (b) which culminated in a judgment HMA 56/19 delivered on 15 November 2019. We now incorporate this judgment in this final judgment to avoid repetition of some of the issues.</p> <p>The allegations against the accused are mired in alleged belief in superstition and possible ritual murder and attempted murder.</p> <p>The accused resides in Village 25, Chief Sengwe in Chiredzi.  He is facing two counts of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>] and attempted murder as defined in s 189 as read with s 47(1) of the Criminal Law (Codification and Reform) Act, [<em>Cap 9:23</em>] as read with s 47(1) of the Criminal (Codification and Reform) Act [<em>Cap</em> <em>9:23].</em></p> <p>In count 1 the charge is that on 18 June 2015 at Gonowani Village, Headman Mpapa, Chiredzi, the accused stabbed the now deceased Stephen Chikucha with an unknown sharp instrument, possibly a knife in the chest causing his death.</p> <p>In count 2 it is said that on 29 June 2015 at Murengwami Village, Headman Mpapa, Chief Sengwe, Chiredzi the accused attempted to kill a juvenile Onias Chibhombise by stabbing him with an okapi knife three times in the neck.</p> <p>The accused denies both counts.</p> <p>At the material time the accused had just returned from South Africa where he was an illegal immigrant. He had been in South Africa from 2010 and only came back on 16 June 2015. He proceeded to Village 25, Headman Machindu, Chief Sengwe, Chiredzi where his mother had relocated to.</p> <p>The now deceased in count 1 was aged 37 years and was a resident of Headman Mpapa, Chief Sengwe, Chiredzi. The complainant in count 2 was 15 years old and resides in Munengami Village, Headman Mpapa, Chief Sengwe, Chiredzi. Both the now deceased and the complainant were not known to the accused.</p> <p>In count 1 the now deceased Stephen Chikuchami had spent the day on 18 June 2015 at Muhlanguleni Business Centre drinking beer with friends. Later before sunset he proceeded home alone. The State alleges that the accused met him and attached him with a sharp object, possibly a knife in the chest for purposes of licking his blood to cure an ailment the accused was suffering from. The now deceased died at the scene. It is alleged that one Beauty Aleck had met the accused near the crime scene where accused allegedly later met the now deceased as accused was walking with stick, which stick was allegedly found close to the now deceased’s body. The cause of the now deceased’s death was said to be tension pneumothorax secondary to penetrating stab wound on the anterior chest wall.</p> <p>In count 2 the 15 year old complainant Onias Chibhombise, some eleven days later after count 1 unpenned his cattle on 29 June in the morning and proceeded to the grazing area to herd the cattle alone. It is alleged that the accused approached him as accused was wearing an orange trousers a black/brown jacket with a hood and a pair of sandals. It is said the accused asked some questions to the complainant as he got closer. The State further alleges that the accused then held the complainant, forced him to the ground and stabbed him three times in the neck after which accused again licked the blood from the okapi knife. The accused is said to have fled from the scene leaving the complainant bleeding profusely. The complainant managed to get help from Amos Chinherera who took him to a local clinic and was later transferred to Chikombedzi hospital where was admitted for 3 days. Meanwhile it is alleged that the police who were alerted of this crime attended the scene and trekked the assailants shoe prints with local villagers which led them to the accused’s residence culminating in the accused’s arrest. After accused’s arrest a pair of grey tackies allegedly linked to shoe prints observed in count 1 were recovered, together with the black/brown jacket with a hood, a pair of orange trousers and a pair of sandals all described by the complainant in count 2.</p> <p>After the accused’s arrest an identification parade was held. In count 1 Beauty Aleck is said to have managed to identify the accused and in count 2 the complainant Onias Chimbombise is said to have also identified the accused.</p> <p>In his defence which he maintained throughout the trial the accused vehemently denied the allegations in both counts. He said he was new in the area and was not known to both the now deceased and the complainant. As a result he said he had absolutely no cause to attack them.</p> <p>The accused denied that he was suffering from any ailment which would warrant some rituals for treatment. Instead he said he had returned from South Africa to obtain a passport.</p> <p>In count 2 the accused said he had spent the day at his residence with his mother and siblings only to be arrested on these allegations when he was never near both scenes of crime in both counts 1 and 2. After his arrest he said he was severely assaulted by the police who wanted him to confess to both counts which he did due to pain. The accused said all what is captured in his so called warned and cautioned statement and the accompanying video Exhibit 5 (a) and (b) is what the police told him to say. Further he said the said witnesses were coached by the police to pick him on a choreographed identification parade where he was conspicuous on account of his short hair and attire.</p> <p>During the course of the trial a total of 9 exhibits were produced. We assess the probative value of these exhibits as follows;</p> <p>Exhibit 1</p> <p>This is a psychiatric report by Dr Patience Maunganidze a psychiatrist who examined the accused and established that the accused had no mental disorder at all. This examination became necessary in view of the nature of the allegations made against the accused, the nature of the offences and the manner they were committed. Indeed there is nothing of suggest that the accused was or is afflicted by any mental disorder.</p> <p>Exhibit 2</p> <p>This is a post mortem report in respect of count 1. It shows that the now deceased Stephen Chikuchani then aged 37 years was killed. The doctor observed a stab wound on the left posterior cervical triangle, another two stab wounds on the left anterior chest wall measuring about 2 cm causing haemorrhage. The cause of the now deceased’s death was tension pneumothorax secondary to a penetrating knife stab wounds on anterior chest wall. Indeed the now deceased in count 1 who had spent the better part of the day at a local business centre drinking beer with friends and in good health was killed when he was attacked with a knife as per Exhibit 2.</p> <p>Exhibit 3</p> <p>This is a medical report in respect of the complainant in count 2. Onias Chibhombise compiled on 30 June 2015. We note that the medical affidavit was done in a perfunctory manner as injuries observed were not described in full. All the doctor said is that the injuries were very serious, had been inflicted with a sharp object using severe force and that permanent injury was likely. This medical report nonetheless confirms the attack on the complainant in count 2. We however had to rely on the complainant’s evidence in count 2 to appreciate the exact nature of the injuries he suffered. The complainant explained that he was stabbed three times with a knife. The first blow was on his wrist and he showed us a healed scar. Two further blows were delivered on the neck, one just below the chin and the other right on the neck. Again we observed the healed scars on the neck. It is clear that whoever attacked the complainant in count 2 in such a manner intended to kill him or did foresee the possibility of death. The charge of attempted murder in count 2 is therefore well made.   </p> <p>Exhibit 4(a) and (b)</p> <p>These are pictures in relation to an identification parade in count 2. In Exhibit 4(b) the complainant is approaching the parade and in Exhibit 4(a) the complainant picks on the accused. It is common cause that the accused was identified by Beauty Aleck in count 1 (not in pictures) and by the complainant in count 2 as per Exhibit 4. All what the accused is saying is that the police coached the witnesses to identify him. In respect of Exhibit 4 we noted that there were 8 people wearing different clothes on the parade. They were almost of same stature and height. Some we were wearing tackies and others sandals. Most of them like the accused had short hair. None of them had similar clothes to the other except that they were wearing pair of trousers of different colours (only one had shorts) and all were wearing t/shirts also of different colours. While it may have been prudent to dress all the 8 participants in similar attire we do not share the accused’s assertion that there is something peculiar about him (either in respect of his attire, stature, height or hair cut) which made him conspicuous and therefore easy to identify.</p> <p>Exhibit 5(a) and (b)</p> <p>This is accused’s unconfirmed warned and cautioned statement and the accompanying video. As already said Exhibit 5 was the subject matter of the trial within a trial and the resultant judgment HMA 56/19. Suffice to say that in that judgment I ruled that Exhibit 5 was admissible after dismissing the accused’s assertions thereof. I therefore do not intend to revisit the same issues in this judgment save to consider whether the accused managed to discharge the evidential onus on him to show that the statement is of no probative value, which in my view is a herculean task. In that statement the accused outlined how he left South Africa for Zimbabwe, the health problems he had and how some bizarre rituals were prescribed as means of treatment. The instruction was to stab the victim and lick their blood on the knife. In that same statement accused outlined how he then attacked the now deceased in count 1 and denied intention to kill despite using a knife. He said he unaware that the now deceased later died after he fled from the scene. In count 2 he said he stabbed the complainant after pretending to be looking for his stray cattle and again denies intention to kill. He explained how he fled from the scene and his subsequent arrest the same day.</p> <p>It would be foolhardy for us to believe that such a detailed account captured in Exhibit 5 was foistered on the accused by the police. In HMA 56/19 I dealt at length with the accused’s assertions and why I disbelieved him. An important feature of Exhibit 5 is that it is an exculpatory statement in which accused denies intention to kill in both counts. In our assessment Exhibit 5 give insight on accused’s possible motive and how the offenses were executed.</p> <p>Exhibit 6</p> <p>This is a pair of sandals recovered after accused’s arrest on 29 June 2015 in count 2. It is the prints of this sandals which were trekked from the scene of crime in count 2 leading to accused’s residence. Again accused’s belated denial that the pair of sandals are not his cannot possibly be true. This will be clearer when one considers the evidence of Amos Chinherera and Cst. Shepherd Muzangwa.                  </p> <p>Exhibit 7</p> <p>This is a stick found new deceased’s body in count 1. Beauty Aleck said when she met the accused on 18 June 2015 the accused was holding a similar stick.           </p> <p>Exhibit 8</p> <p>This is a note book completed by   initial attending detail which outlines the history and chain of investigations done.</p> <p>Exhibit 9(a) to (c) </p> <p>These are accused’s orange trousers, black jacket with a hood and his pair of tackies all recovered after his arrest in count 2. The pair of tackies are liked to count 1.</p> <p>The evidence</p> <p>The evidence of Max Matsikidze (count 1); John Makondo (count 1), Dr Tungamirai Isaac Vengai Rukatya (count 1) and Dr Mutengwe (count 2) was all admitted in terms of s 314 of the Criminal Procedure and Evidence Act [<em>Cap 9:07</em>]. In brief it is a follows;</p> <p>Max Matsilele (Max) </p> <p>Max was well known to the now deceased. He is not known to the accused. In count 1 on 18 June, 2015 he was with the now deceased at Muhlanguleni business centre drinking beer. He later left for his residence only to be told of the deceased’s death. He proceeded to were the deceased’s body was the same day. He saw an unpeeled stick near the body and some shoe prints which he trekked with other villages but lost the prints in the bush.</p> <p>John Makondo (John)</p> <p>John knew the deceased as a local person but is not known to accused. He is the one who discovered the now deceased’s body as he was driving a tractor. At the scene he observed drops of blood. The now deceased had an injury in the chest and an unpeeled stick was close to his body. This was around 1800 hours and he alerted fellow villagers.</p> <p>Dr Tungamirai Isaac Vongai Rukatya</p> <p>He is the one who examined the now deceased’s remains at Chiredzi hospital and compiled the post mortem Exhibit 2 already alluded to.</p> <p>Dr Mutengwere </p> <p>He is the doctor who examined the complainant at Chikombedzi hospital in count 2 and compiled the medical affidavit Exhibit 3 also already alluded to.</p> <p>We now turn to <em>viva voce</em> evidence led from Beauty Aleck (count 1); Onias Chimbombise (count 2); Amos Chinherera (count 1 and count 2)’A/Assistant Inspector Victor Chinoni (both counts); and Cst Shepherd Muzangwa (both counts).</p> <p>The accused also gave evidence and called his mother Saliwe Manyoni as a witness.</p> <p>Beauty Aleck (Beauty) (count 1)</p> <p>Beauty resides in Godoweni Village, Headman Mpapa, Chief Sengwe, Chiredzi and know the now deceased as a fellow villager but was not known to the accused.</p> <p>She testified that on 18 June 2015 at about 1600 hrs she was travelling home with her sister in law and mother in law from Muhlanguleni business centre. She met with the accused who was going in an opposite direction. Accused was a stranger to her and he was holding a stick similar to Exhibit 7. As they by passed each other she said accused starred at them for some period and this caused her to have a closer look at accused. She observed accused was light in complexion, of medium height and wearing a black jacket with a hood. Later a tractor driver caught up with them and advised them of the discovery of the now deceased’s body.</p> <p>After accused’s arrest she managed to positively identify the accused at an identification parade due to his facial appearance and stature despite having changed clothes. She was adamant that she is not mistaken as to accused’s identity.</p> <p>The value of Beauty’s evidence is whether she properly identified the accused a stranger to her. It was in broad daylight. According to her she had a closer look at accused because he starred at her. Later she was able to pick on accused at an identification parade. No plausible reason was advanced as to why Beauty could be mistaken as to the accused’s identity. She has no inherent motive to falsely incriminate the accused. Her testimony debunks accused’s assertion that he was nowhere near the scene of crime. If she is correct then accused would have told the court a material lie and the question is why. Beauty’s evidence reads well.</p> <p>Onias Chimbombise (Onias)(count 2)</p> <p>Onias was not known to accused. On 29th June, 2015 he was herding cattle alone in the bush. A stranger approached him, bombarding him with questions. He was asked if he had seen a black bull. He had not. He was asked where he stayed and disclosed it was in Murengwani Village, Headman Mpapa, Chief Sengwe, Chiredzi. The stranger inquired how far his home was from the grazing area and he explained.</p> <p>Onias said he was with this person for about 5 minutes before the attack. He observed the stranger was wearing an orange trousers, a black jacket with stripes in front and a hood and a pair of sandals. He could see his facial appearance and stature.</p> <p>Onias said as this person got closer to him he held Onias’ shirt, pushed him to the ground and sat on his stomach throttling him. He was stabbed in quick succession on the wrist, on the neck below the chin and on the neck. His cries were muffled. The assailant got up and fled. Onias managed to get help from person at nearby home. He was taken to a local clinic and then to Chikombedzi hospital where he spent three days admitted. He showed us the three healed scars arising from the stab wounds. Onias explained he still feels pain when he turns his head.</p> <p>Later he was called at an identification parade with about 9 people. He managed to identify his assailant because of his height hair cut style and trousers. He points at accused as his assailant. He disputed that police coached him to falsely incriminate the accused. He denied being shown clothes recovered by police at accused’s residence but simply described the clothes to the police.</p> <p>Again the question to be asked is whether Onias properly identified his assailant. The attack was in broad day light. He talked to the assailant for some time in close proximity before the attack. He could see his facial appearance, stature and attire. He described all this to the police. At an identification parade he pointed at accused as his assailant. There are no factors pointing to his mistaken identity of the accused, let alone a motive to lie against accused. There is no reason why we should reject his evidence.</p> <p>Amos Chinherera (Amos) (counts 1 and 2)</p> <p>Amos resides in Chinyatu Village and was known to the deceased in count 1. On 18 June, 2015 he was telephoned by John Makondo after the discovery of the now deceased’s body. He proceeded to where the body had been discovered. He too had been with the now deceased that day at Mhlanguleni business centre.</p> <p>At the scene Amos observed struggle marks and shoe prints of the possible assailant. The now deceased’s mobile handset was close to the body and also a stick similar to Exhibit 7 and it had blood stains. He observed a stab wound on the now deceased’s chest. As it was late the next day he teamed with other villagers to track the shoe prints of the suspected assailant from the scene but they lost the prints in the bush.</p> <p>Some 11 days later in count 2 on 29 June 2015 while at his homestead the complainant Onias came crying badly injured and reported he had been attacked by some assailant at the grazing area. He was shocked. He took Onias to the clinic and alerted the fellow villagers. He advised the villagers to try and track the shoe prints of the assailant from the scene of crime. Later he was advised of the accused’s apprehension. He was at accused’s house when a pair of sandals Exhibit 6, and the clothes (pair of takkies, orange trousers and jacket with a hood) Exhibit 9(a) to (c) were recovered at accused’s residence. Amos’ evidence was unchallenged. It confirms firstly the commission of the offences and how accused was arrested.</p> <p>Cst Shepherd Muzangwa (Cst Muzangwa) (both counts)</p> <p>Cst Muzangwa is the police detail who initially attended to the scene in count 1. He observed the stick Exhibit 7 near the now deceased’s body, the now deceased’s nokia handset and the assailant’s show prints which they could only track into the bush and lost them. The police made no headway at this stage in count 1.</p> <p>In count 2 a report was made to him again. The assailant’s attire was described to him that is the orange trousers, pair of brown sandals and black jacket with a hood. He teamed with other police details and proceeded to the scene in count 2.</p> <p>At the scene he observed struggle marks, blood stains and shoe prints of the assailant which wore sandals. He tracked the shoe prints with the help of villagers and they led him to accused’s homestead. He found accused at home. Accused was wearing an orange trousers as per Onias the complainant in count 2’ description. He searched accused’s residence and found the pair of sandals described by Onias and the jacket with a hood. He also recovered a pair of takkies which had similar prints with the one he had observed at the scene in count 1. He took the items Exhibit 6 and 9(a) to (c) as Exhibits.</p> <p>Under cross examination on Cst Muzangwa conceded that the takkies he recovered were not matched by an expert with the one he saw at the scene in count 1 but insisted the prints were similar. He was clear that in count 2 he participated in tracking the shoe prints up to the accused’s residence and recovered the sandals and trousers.</p> <p>There is absolutely no basis as to why we should reject Cst Muzangwa’s clear evidence on what led them to accused’s residence and why accused was apprehended. It would be stretching one’s imagination too far to believe all his testimony was a fabrication.</p> <p>D/Assistant Inspector Victor Chinoni (D/Ass Insp. Chinoni)</p> <p>D/Ass Insp. Chinoni was part of the investigating team with the Investigating Officer D/Sgt Thulisani Moyo.</p> <p>On 1 July, 2015 he met the accused and conducted an identification parade relevant to count 2 which had 9 people of similar height wearing t-shirts of various colours. The complainant in count 2 Onias identified positively accused at that parade as his assailant. He disputed that Onias was coached on who to pick on or exposed to accused before the identification parade. During the parade photographs Exhibit 4(a) and (b) were taken.</p> <p>Secondly, he recorded the accused’s warned and cautioned statement Exhibit 5(a). The manner he did this is explained in detail in HMA 56/19. In that judgment I dealt at length with his demeanour and credibility as a witness which findings I have no cause not to incorporate in this judgment.</p> <p>D/Ass Insp. Chinoni said the accused also led the investigating team to scenes of crime in both counts. He conceded that despite accused’s assertions that the knife used was at accused’s house they searched and failed to find it. Suffice to say D/Ass Insp. Chinoni is not only a very experienced officer with 20 years under his belt but was both eloquent and incisive. He refuted allegations of torture an coercion raised by the accused.</p> <p>D/Sgt. Thulisani Moyo (D/Sgt Moyo)</p> <p>D/Sgt Moyo is the investigating officer who took the matter after the accused’s arrest in Chikombedzi after count 2.</p> <p>He said when he initially interviewed accused at Chikombedzi the accused denied both charges but later gave a different version at Chiredzi which was recorded as Exhibit 5. Thereafter accused also led him to scenes of crime in count 1 and count 2. At accused’s house he failed to recover the knife used in both counts. He tasked another details to carry out an identification parade in count 1 and Beauty identified the accused.</p> <p>D/Sgt Moyo denied that accused was forced to make any confession. During his investigations D/Cst Juma gave him the stick Exhibit 7 relevant to count 1 and D/Sgt Muzangwa gave him the sandals Exhibit 6, his note book and other exhibits recovered.</p> <p>In our assessment D/Sgt Moyo gave his evidence well and was clear on how he linked the accused to the offences.</p> <p>Accused’s case and findings</p> <p>From the evidence outlined the accused is linked to both counts through direct evidence, circumstantial evidence and his confessions.</p> <p>The argument by the accused that he was mistakenly identified by both Beauty in count 1 and Onias in count 2 cannot possibly be true in light of the evidence of the two witnesses. Their evidence placed the accused at or near the scene of crime in both counts and poke holes in accused’s defence that he was nowhere near the scenes of crime. We therefore reject the accused’s defence of mistaken identity let alone being maliciously implicated by Beauty and Onias.</p> <p>It is also clear that accused was subsequently positively identified by both Beauty in count 1 and Onias in count 2 and a properly constituted and conducted identification parade. We are not persuaded that the identification parades were improperly conducted or maliciously done.</p> <p>There is clear evidence in our view on how accused was arrested soon after the attack of Onias in count 2. Again it would not make sense that villagers and the police would just find themselves at accused’s residence for no reason. Again it cannot be mere coincidence that the attire described by Onias in count 2 as that of the assailant was found with the accused’s (Exhibit 6 and Exhibit 9).</p> <p>The evidence of accused’s mother Saliwe Manyoni cannot therefore be possibly true that the accused was always at home at all material times and was simply maliciously implicated. As accused’s mother one understands her misplaced desire to rescue the accused even if it meant to misrepresent facts that accused would be within her sight every second!! This explains why she even tried to dispute what accused himself did not deny that upon his arrest he was wearing the orange trousers.</p> <p>In our view the accused’s confession in Exhibit 5 is simply an icing on the cake. That confession dovetails with the other evidence adduced from state witnesses. The accused valiantly tried to distance himself from the confession. He also tried to even disown his sandals Exhibit 6. All in all the accused’s version of events does not add up and cannot possibly be true. We therefore reject it <em>in toto</em>.</p> <p>We are satisfied that it is the accused who caused deceased’s death intentionally in count 1 and attempted to kill the complainant in count 2. While the accused may not have had the requisite actual intent in count 1 as per his confession he nonetheless did foresee that death may result from his conduct.</p> <p>In the result, we have entered the following verdicts;</p> <p>VERDICT</p> <p>COUNT 1 – guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>]:- murder with constructive intent.</p> <p>COUNT 2 – guilty of contravening s 189 as read with s 47 of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>]:- attempted murder.</p> <p>REASONS FOR SENTENCE</p> <p>In assessing sentence we shall consider both the mitigatory and aggravating factors.</p> <p>This was a protracted trial and there is little one may meaningful say in your favour.</p> <p>The offences of murder and attempted murder are inherently serious offences punishable with lengthy custodial terms. There are no good reasons as to why we should depart from this approach.</p> <p>It is the duty of the court to protect the sanctity of human life and human blood is sacred. No one has the right to take the life of another.</p> <p>It is clear that you were very callous in the manner you committed the offences. Despite your belief in superstition and rituals you were selfish. In addition to this you have not exhibited any contrition. It is aggravating that you committed the two offences one after the other. You caused fear, alarm and despondency in the community within that short period of time.</p> <p>The now deceased in count 1 lost his life in order to fulfil your own beliefs. The complainant in count 2 is very young boy who was traumatised. There is therefore need for deterrent sentence.</p> <p>We are however alive to your personal circumstances.</p> <p>You are married with one child. As the sole bread winner your family looks up to you for support.</p> <p>You committed these offences as a result of your superstitious beliefs that you could be healed by licking human blood.</p> <p>Another important mitigatory factor is that you have suffered pre-trial incarceration of 5 years. In order to reflect this prejudice to you we shall order the sentence in count 2 to run concurrently with the sentence in count 1.</p> <p>In the result, you are sentenced as follows;</p> <p>Count 1:- 20 years imprisonment</p> <p>Count 2:- 5 years imprisonment</p> <p>Further it is ordered that the 5 years imprisonment in count 2 is to run concurrently with the 20 years in count 1.</p> <p>Total effective:-</p> <p>20 years imprisonment.</p> <p><em>National Prosecuting Authority, </em> counsel for the State                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             <em>Chihambakwe Law Chambers</em>, <em>pro deo</em> counsel for the accused</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/48/2020-zwmsvhc-48.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38437">2020-zwmsvhc-48.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/48/2020-zwmsvhc-48.pdf" type="application/pdf; length=160129">2020-zwmsvhc-48.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/admissions">Admissions</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-1">Evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/trial">Trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/admissibility-evidence">Admissibility of evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-evidence">Criminal matter (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 21 Oct 2020 14:27:30 +0000 Sandra 9892 at https://old.zimlii.org S v Leach (HB 94-18, HCA 83/14 X REF BYO REG CRB 294/13) [2018] ZWBHC 94 (29 March 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/94 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>NEAL CEGRIM LEACH</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>BERE &amp; MAKONESE JJ</p> <p>BULAWAYO 19 OCTOBER 2015 &amp; 29 MARCH 2018</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>T.A. Cherry with T. Masiye-Moyo</em> for appellant</p> <p><em>K. Ndlovu</em> for the respondent</p> <p>            <strong>BERE J:         </strong>After hearing argument in this matter, both the conviction and sentence were set aside.  The court indicated that its written reasons would follow.  Here they are.</p> <p>            The appellant in this case was convicted by a Regional Magistrate sitting at Bulawayo on 21st February, 2014 of three counts of contravening section 66 (1) (a) (i) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  After conviction the appellant was sentenced to serve a cumulative sentence of 25 years five years of which were conditionally suspended leaving an effective sentence of twenty (20) years imprisonment.</p> <p>            Aggrieved by both the conviction and sentence the appellant lodged this appeal to this court against both.</p> <p>            As against conviction the grounds of appeal were framed as follows:</p> <p>“1.       The learned magistrate in the court <em>a quo</em> erred in fact and consequently in law when he held that the complaint by the complainant was made without undue delay at the earliest opportunity which under all circumstances would reasonably be expected, to be made to the first person to whom the complainant would be expected to make it given that the complainant had had all the opportunity to make the complainant to her mother who was close to her and in any event to her boyfriend way earlier than at the time the complainant was made.</p> <p>2.         The learned magistrate in the court <em>a quo</em> misadvised himself and therefore misdirected himself when he held that the question before him was “whether or not the accused committed the alleged offence” when in fact the question is whether or not the State has proved its case beyond reasonable doubt.</p> <p>3.         The learned magistrate in the court <em>a quo</em> misdirected himself in that he failed to note the significance of the unsatisfactory evidence of the complainant under cross-examination …</p> <p>4.         The learned magistrate in the court <em>a quo</em> erred in law in that he failed to analyse the evidence count by count and instead wrongly treated all the counts as one.</p> <p>5.         The learned magistrate in the court <em>a quo</em> misdirected himself in that, he failed to understand, analyse and properly evaluate the medical evidence that the placed before him.</p> <p>6.         The learned magistrate in the court <em>a quo</em> misdirected himself in basing his conviction on the finding that the appellant “must have done something to her” which misdirection resulted in the learned magistrate losing sight of where the onus lay.</p> <p>7.         The learned magistrate completely abdicated his duty to properly analyse the evidence of the complainant for credibility and instead chose to make a bold assertion that he found her to be credible.</p> <p>8.         The learned magistrate in the court <em>a quo</em> erred in law by completely ignoring the evidence of Laura Pinkney who testified that she would always come home for lunch on Mondays and would only leave at 3.00pm for afternoon activities.</p> <p>9.         The learned magistrate failed to make a proper or any assessment of evidence of the appellant and his witness on its merits choosing instead to rely on possibilities for his findings in a criminal case.”</p> <p>            As against sentence the ground of appeal were basically that by failing to treat all counts as one for purposes of sentence, the learned magistrate ended up with a sentence that was so excessive as to induce a sense of shock.</p> <p>            Upon being served with the appellant’s notice of appeal and the elaborate heads of argument the respondent declined to support both the conviction and sentence.</p> <p>            In arriving at this position the respondent’s counsel was swayed by the inconsistencies in the complainant’s evidence which negatively coloured her credibility.  Counsel was of the firm view that in all the probabilities of this case, the complainant dismally failed to pass the credibility test which incidentally the lower court had triumphantly concluded had been established and used it was the main basis of the appellant’s conviction.</p> <p><strong>The background</strong></p> <p>            The complainant, a 16 year old girl and a student at Girl’s College, Bulawayo had been given accommodation as a border together with four other girls from the same college at the accused’s residence.</p> <p>            The complainant then alleged that on diverse occasions stretching from February to March 2013 the appellant had indecently assaulted her by inserting his fingers inside her vagina and that on one occasion the appellant was alleged to have forced the complainant to suck the appellant’s erect penis.</p> <p>            The appellant strenuously denied the allegations in the lower court.  However, despite this and after a protracted trial the appellant was convicted and sentenced as already highlighted.</p> <p><strong>The legal position on sexual matters</strong></p> <p>            The position of our law was authoritatively laid down in the much celebrated case of <em>S</em> v <em>Banana</em> as follows:</p> <p>            “The requirements for admissibility of a complainant are:</p> <ol> <li>It must have been made voluntarily and not as a result of question as a leading and inducing or intimidating nature.See <em>R</em> v <em>Petros</em> 1967 RLR 35 (G) at 39G-H.</li> <li>It must have been made without undue delay and at the earliest opportunity, in all the circumstances, to the first person to whom the complainant could reasonably be expected to make.See <em>R</em> v <em>C</em> 1955 (4) SA 40 (N)_ at 40G; <em>S</em> v <em>Makanyanga </em>1996 (2) ZLR 231 at 242G – 243C”</li> </ol> <p>A simple perusal of the judgment of the court <em>a quo</em> clearly shows that the learned magistrate was fully alive to the correct applicable legal position in sexual matters.  However, the shortcomings of his judgment were exposed when he failed to apply the legal position to the evidence which was accepted by the court, or that evidence which was not in dispute.</p> <p>Three cardinal errors which were made by the court <em>a quo</em> can be summarised as follows:</p> <p>The first error that screams loudest was the magistrate’s stout effort to try and determine the outcome of this case by relying on evidence based on a balance of probabilities as opposed to being guided by proof beyond a reasonable doubt.  It is trite that in criminal proceedings, and in order for the court to find against an accused person, the proof required is proof beyond a reasonable doubt.  There is no room in a criminal matter for the court to be guided by the balance of probabilities.</p> <p>The second error made by the trial court was its apparent failure to appreciate that the complainant’s conduct looked at in is totality did not satisfy the requirements outlined in the <em>Banana </em>case (<em>supra</em>).</p> <p>Thirdly, the court <em>a quo</em> failed to appreciate that the inconsistencies in the complainant’s evidence heavily militated against a finding of credibility in her favour.  It is quite telling that despite all these highlighted issues having been presented to the court <em>a quo</em> during cross-examination of the complainant and during court addressed by the appellant’s counsel the court chose to disregard same on uninformed basis.</p> <p><strong>Proof beyond a reasonable doubt</strong></p> <p>            It is a time honoured principled of our law that in order for the court to convict an accused person the state must have proved its case beyond a reasonable doubt.  All an accused person is expected to do is to merely cast doubt on the state case.  GILLESPIE J in the case of <em>S </em>v <em>Makanyanga </em>eloquently puts the position as follows:</p> <p>“Whilst it is axiomatic that a conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of a criminal complaint, still, the fact that such credence is given to testimony for the state does not mean that conviction must necessarily ensue.  This follows irresistibly from the truth that the mere failure of an accused person to win the faith of the bench does not disqualify him from an acquittal.  Proof beyond a reasonable doubt demands more than that the complainant should be believed and the accused disbelieved.  It demands that a defence succeeds whenever it appears reasonably possible that it might be true.  The insistence upon objectivity far transcends mere considerations of subjective persuasion which a judicial officer may entertain towards any evidence.  If it were not so then the administration of criminal justice would be the hostage of the plausible rogue who’s insincere but convincing blandishments must prevail over the stammering protestations of truth by the diffident, frightened or confused victim of false incrimination.”</p> <p> </p> <p>            In <em>R</em> v <em>Henry</em>, the learned Judge made a very critical observation when he remarked as follows:</p> <p> </p> <p>“Human experience has shown that in the courts girls and women do sometimes tell an entirely false story which is very easy to fabricate but extremely difficult to refute.  Such stories are fabricated for all sorts of reasons … and sometimes for no reason at all”.</p> <p>            In the instant case, one notes in the court <em>a quo’s</em> judgment a blind determination to religiously accept the whole story told by the complainant without critically analyzing her evidence.  The apparent shortcomings of the judgment are clearly demonstrated by the magistrate’s total failure or neglect to analyse the evidence of the appellant.  The appellant maintained throughout the proceedings that the allegations against him did not take place and that he had no idea about the complainant’s motive in bringing the charges against him.</p> <p>            If the court <em>a quo</em> had commended on the evidence of the appellant and analysed same in the same manner that it did with the complainant’s testimony, the court would probably have agreed with the consistent position maintained by the appellant.  In these cases, it is not sufficient to blindly whitewash the complainant’s testimony and using the same to condemn an accused because that is not what the law dictates.  The analysis and critic of evidence must be done in respect of both the complainant’s evidence and that of an accused or appellant to remove any traces of bias.  The judgment of the court a quo failed to achieve this and it therefore comes nowhere nearer to establishing the accused’s guilt beyond a reasonable doubt.</p> <p><strong>The inconsistencies in the ………………………….</strong></p> <p>            It is quite telling that the evidence on record suggests that the complainant was reluctant to bring the allegations of abuse to her boyfriend Kevin Lombard, her closest friend Danielo and event to her parents.  The closest she came to was with particular reference to the threat of kidnapping by the appellant.  If it is true that the appellant had sexually abused her not once, not twice but thrice, why would she not have reported such serious violations to any of these individuals?  The complainant’s case gets complicated if one considers the existence of other girls with whom she stayed, her teachers at Girls’ College, the domestic helpers, her friend’s parents, to whom she could have reported.  As observed by appellant’s defence counsel the complainant’s accessibility to social media and her failure to use same further complicates her situation.</p> <p>            To further compound her case, when she eventually decides to take things out of her breast, she talks about kidnapping and not sexual abuse.  It is not safe to trust such complainants.  They can easily lead one astray like what happened in this case.</p> <p>            All these observations could not possibly have supported the credibility of the complainant’s story.  It remained far from convincing.</p> <p><strong>The delayed report</strong></p> <p>            If there is anything that put the final nail in the complainant’s case was her unexplained delay in reporting the sexual abuse.</p> <p>            As correctly observed by the appellant’s defence counsel, here, the court <em>a quo</em> was dealing with a mature and intelligent complainant who had already started dating her boyfriend Kevin, at whose place she was putting up on a number of occasions.</p> <p>            The delay in reporting which goes against the court’s position in the <em>Banana</em> case remained inexplicable in the judgment.  The evidence suggests that having been abused on three separate occasions with his assailant using the same <em>modus operandi</em>, the complainant took close to three months to report the abuses.  Even when the reports were eventually made, the complainant was not forthright – she started reporting some threat of kidnapping by the appellant before the sexual assault came out.  The judgment of the court <em>a quo</em> does not adequately explain either the delay in reporting or the reluctance by the complainant to report such a serious assault at the numerous opportunities that presented themselves to her.</p> <p>            This judgment will not find space to exhaustively deal with the conduct of the complainant which militates against the finding of credibility on her part which would justify a finding of the appellant’s guilt beyond a reasonable doubt.</p> <p>            In conclusion of this judgment, let me recall the observation I made in a recent review case on sexual assault where I remarked as follows:</p> <p>“When everything has been said about this case, one cannot help but come to the conclusion that the conviction n this case was arrived at more out of sympathy of the victim than borne out of the evidence led.  Clearly the magistrate fell into error.”</p> <p>            This was a poor conviction and the concession made by the state against supporting that conviction was well made.</p> <p>            Having taken this stance it is not necessary for this court to consider the appeal against sentence because that sentence is standing on nothing.</p> <p>            In the result, the appeal succeeds.  The conviction is quashed and the sentence is set aside.  The appellant is found not guilty and acquitted.</p> <p> </p> <p> </p> <p> </p> <p>                                                Makonese J ……………………………….. I agree</p> <p> </p> <p><em>Messrs Hwalima Moyo &amp; Associates</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority,</em> respondent’s legal practitioners</p> <p> </p> <p>2000 (1) ZLR 607 (S) @p 616B-C</p> <p>1996 (2) ZLR 231 (H) at p 235E-G</p> <p>(1968) 53 Cr App R 150</p> <p>The State vs Kevin Moonsammy HB-325/17 at p 11</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/94/2018-zwbhc-94.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23456">2018-zwbhc-94.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/94/2018-zwbhc-94.pdf" type="application/pdf; length=179494">2018-zwbhc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-evidence">Criminal matter (EVIDENCE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sexual-cases-evidence">Sexual cases (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/witness-evidence">Witness (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 10 Apr 2018 06:45:02 +0000 admin 8695 at https://old.zimlii.org