Judgment No. HB 7/2003

                                                                        Case No. HC 37/2001

 

THE STATE

 

Versus

 

CHARLES NEIL TRECEAY

 

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 19, 20 & 21 NOVEMBER 2002

 

H. Ushewokunze IIIfor the applicant

Adv. T A Cherry (instructed by J James)for the respondent

 

Judgment

 

            CHIWESHE J:          The accused is charged with murder it being alleged

 

that on 22 August 1999 at Greyville Equestrian Centre, Douglasdale, Bulawayo he

 

wrongfully, unlawfully and intentionally killed and murdered one Vivian Marlyn

 

Vassilieff, a female adult.

 

            The summary of the state case is to the following effect.  The deceased was

 

the owner of a riding school known as the Greyville Equestrian Centre in

 

Douglasdale, Bulawayo.  She was known to the accused in that the accused had at one

 

time been riding at the centre.  On or around 22 August 1999 the deceased had made

 

arrangements to have dinner with the accused.  On that day the accused proceeded to

 

the deceased’s house as per invitation.  They had dinner together.  “In the process

 

deceased got killed.”  The accused then ferried the deceased’s body at the back of her

 

Nissan truck and drove all the way to the Beitbridge area where he buried the body in

 

an open pit at Paude Mine.  The accused was later seen driving deceased’s vehicle and

 

selling clothes belonging to the deceased.  Most of deceased’s property including a

 

.22 Colt pistol were recovered from him.  The vehicle has not been recovered.  The

 

deceased’s decomposed body was recovered after eleven days.

 

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            In his defence outline the accused person denies the allegations levelled

 

against him.  He admits visiting the deceased’s residence on 22 August 1999 at the

 

deceased’s invitation.  He stated that he and the deceased partook of some alcoholic

 

beverage.  He had previously taken a quantity of Rohypnol (Flumitrazepam) tablets

 

which had been prescribed for him.  He alleges that this hypnotic drug can cause

 

bizarre and unpredictable conduct.  He further states that he suffers from an “Anti

 

Social Personality Disorder” which may affect his conduct.  He also has a large

 

arachnoid cyst in the right frontal lobe of his brain.  His recollection of what

 

transpired that evening is extremely confusing.  He avers that as a result he has made

 

various conflicting and inconsistent accounts of what transpired.  He would deny that

 

any indications made or statements made accompanying those indications were made

 

freely and voluntarily.  He states that he was seriously assaulted by the police a fact

 

he reported to the magistrate.  He would say that any unlawful act proved to have

 

been committed by him (and he admits no such act) was done by him whilst in a state

 

of diminished responsibility.

 

            The following exhibits were tendered by consent.  The post-mortem report

 

number 643/572/99 compiled by Dr M K Kayembe (exhibit 3), the accused person’s

 

warned and cautioned statement (exhibit 4), an affidavit sworn to bya psychiatrist, Dr

 

Elena Poskotchinova (exhibit 5), an affidavit sworn to by Professor L F Levy, a

 

medical practitioner (exhibit 5(a)), an affidavit sworn to by the Government

 

psychiatrist Dr F B Chikara (exhibit 5(b)), a report by Dr K Naik in respect of a brain

 

scan conducted on the accused person (exhibit 5(c)) and an affidavit sworn to by D J

 

Broomberg, a clinical psychologist (exhibit 5(d)).

 

 

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            The state called five witnesses.  The first state witness was David Hanisi

 

Sedeya.  He told the court that he was employed by the deceased as a cook.  He had

 

been granted time off for the period 22 to 25 August 1999.  On 25 August 1999 he

 

had returned to work.  He proceeded to his quarters where he changed into his usual

 

uniform.  He proceeded to the main house to commence his duties.  He found the door

 

to the main house open.  The lights were on and the stove warmer had also been left

 

on.  There was food all over the stove and the pots.  The window in the sitting room

 

was open and things were in general disorder.  He proceeded to the deceased’s

 

bedroom.  There was no one in that bedroom.  He discovered that the deceased had

 

left her handbag.  She normally carried it wherever she went.  The witness then

 

phoned the deceased’s friend, a veterinary surgeon called Dr Boye.  It was Dr Boye

 

who then phoned the police.  The witness also noticed that the deceased’s vehicle (a

 

Nissan pick up cream-white in colour) was not at the premises.

 

            The second state witness was Peter Robert Strobel.  He was the deceased’s

 

mechanic and plumber.  On 22 August 1999 the deceased had spoken to him at a

 

church service.  She had locked her keys in a cupboard and wanted the witness to

 

come to her house and attend to that problem.  He said that he visited her that

 

evening.  Whilst there he learnt that she was expecting the accused person for dinner. 

 

She advised him that she had been trying to cancel that engagement by phone.  The

 

witness duly opened the cupboard and retrieved the keys.  Thereafter the witness and

 

the deceased came out of the house.  They met the accused outside.  The deceased

 

introduced the witness to the accused person.  The witness and the deceased discussed

 

further works needing attention at the premises.  The accused according to the witness

 

 

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followed them behind listening to their conversation.  The witness under cross

 

examination admitted that the accused had not attempted to hide his identity.  The

 

witness had suggested to the deceased if he could take the accused with him to town

 

seeing as she had intended to cancel dinner with him.  The deceased declined the

 

suggestion and showed the witness a short gun which she said she would use if

 

attacked.     She did not say why she expected to resort to the use of the short gun. 

 

The witness left the premises between 6.30pm and 7pm.  He had visited the deceased

 

with his family.  Also present at the premises was a youngster called Karl Zechmer. 

 

The witness was unable to say why the deceased felt uncomfortable on account of the

 

presence of the accused person.  He said that the accused had told him that he was

 

staying in Killarney but working in Mozambique.  Under cross examination the

 

witness said he was aware that the deceased was having problems with her marriage. 

 

She had been married four times.  She also had health problems relating to her goitre. 

 

She had a thyroid condition for which she took medication.

 

            The third state witness was Clement Sithole.  He is a petrol attendant at a

 

service station in Beitbridge.  He had known the accused person prior to the events

 

leading to the present case.  The accused used to work at Beitbridge for a company

 

involved in third party insurance.  On 23 August 1999 the accused had come to the

 

service station seeking to refuel.  It was around 7.30pm.  He was driving a yellowish

 

pick up.  He was driving alone.  As the witness was filling the said car the accused

 

person indicated to him that he was selling two watches and a blouse.  On being

 

shown the items the witness decided to buy the blouse.  He was charged one hundred

 

dollars.

 

 

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The witness did not enquire as to where the accused had got the items he was selling.

 

After serving him with fuel, the accused left.  The witness never saw the accused

 

again.

 

            During cross examination it became apparent that the witness had given two

 

statements to the police – one on 18 November 1999 and another on 2 September

 

1. In the former he had said that he had met the accused sometime in August 1999

 

whilst in the latter he had been specific about the date of the meeting namely 23

 

August 1999.   It had been suggested to him that he had mentioned the exact date in

 

his evidence in chief as a result of a leading question put to him by the prosecution. 

 

He was also quizzed by the defence pertaining the description of the motor vehicle

 

driven by the accused person on the day in question.  In his statement he had

 

described it as being white in colour when in his evidence in chief he had described it

 

as yellow in colour.  The witness said that it was yellowish white.  He said that the

 

blouse he bought from the accused person had been taken by the police.  It has not

 

been produced in evidence.

 

            The fourth witness was Matthew James Dahl.  He is a Zimbabwean born

 

South African citizen.  He is related to the deceased.  They are second cousins.  He

 

lives in South Africa but visited the deceased regularly in Bulawayo.  On 26 August

 

1999 he received a telephone call from Dr Boye concerning the deceased’s

 

disappearance from her home.  He immediately left for Zimbabwe.  He made several

 

inquiries on the matter and assisted the police with the investigations.  He is a

 

qualified reflexologist who had treated the deceased on several occasions.  He was

 

able to identify the deceased’s body at the mortuary by feet, teeth and physical

 

 

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appearance.   He also identified the body by facial operations which had been

 

confirmed by the doctor.  He said that he was aware that the deceased had a thyroid

 

problem for which she had been receiving treatment.  Otherwise she was a very

 

healthy person.  He said that he had not seen any signs of trauma or injuries on the

 

deceased’s body.  He was aware the deceased had had cosmetic surgery.  He had also

 

seen some implants which the doctor had removed from the body.  He said that

 

implants could pause danger to the patient if they leaked or burst and that they also

 

could have a toxic effect.  He was aware also that the deceased’s marriage (her fourth)

 

was on the verge of collapse and that she was living as a single person.  He would not

 

be drawn to say whether or not in her situation she needed to seek male entertainment. 

 

The witness said that the deceased’s house was out of bounds to her horse riding

 

clients.   Although initial interviews would be conducted at the house, clients

 

would not be expected to visit the house thereafter as it was a restricted area.

 

            The last state witness was Lahliwe Nyathi.  She was employed by the

 

deceased as a housemaid.  Her duties were to clean the house and to do the laundry

 

and ironing.  She as such was familiar with the deceased’s clothing.  On 1 September

 

1999 she was shown certain clothing by the police.  She identified the clothes as

 

belonging to the deceased.  These were panties, a bra and a sleeveless dress.  She had

 

been in the deceased’s employ for seven months.  None of these items were produced

 

in evidence.  The state had intended to call two further witnesses – a pathologist and a

 

sixteen year old boy from Beitbridge.  The witnesses were not immediately available. 

 

The case was adjourned.  On resumption the state reported its failure to secure the

 

witnesses and proceeded to close its case.

 

 

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            The defence applied for a discharge at the close of the state case on the

 

grounds that there was no case for the accused person to answer.  It was argued in

 

support of the application that none of the state witnesses had linked the accused

 

person to the commission of the offence.  The first state witness David Hanisi’s

 

evidence was to the effect that he found the deceased’s house abandoned.  Although

 

his evidence shows that the house was in a state of disorder and untidiness, he was

 

unable to advert to any signs of struggle or violence.   He did not implicate the

 

accused person in any way.  The second state witness Mr Strobel met the accused

 

person at deceased’s house.  The accused person did not hide his identity and acted

 

normally throughout.  Although the deceased was apprehensive of the accused’s

 

presence she did not confide to the witness why she felt that way and why she had

 

nonetheless invited the accused for dinner. Otherwise all this witness can establish is

 

that the accused person was at deceased’s premises that evening for purposes of

 

having dinner at the invitation of the deceased.

 

            The third state witness testified to the fact that he had on or about 23 August

 

1999 seen the accused person driving a “yellowish white” Nissan pick up.  This

 

vehicle is similar to the one that belonged to the deceased save that the witness was

 

unable to say whether it was really white or a shade of white.  He did not give its

 

registration number.  He bought a blouse from the accused person.  He did not

 

describe the blouse nor was the blouse produced as an exhibit.  In this regard it was

 

not therefore shown that the blouse so sold belonged to the deceased.  There is a

 

missing link between his evidence and that of Lahliwe, the last state witness, that

 

 

 

 

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tends to confirm that the blouse they both refer to is indeed the same blouse belonging

 

to the deceased.  The items referred to by the two witnesses have not been produced

 

in order that the witnesses confirm their evidence.  The items were supposedly taken

 

by the police for purposes of production as exhibits in this trial.  The vehicle

 

belonging to the deceased and allegedly driven by the accused has not been recovered.

 

            The third state witness Mr Dahl is a relative of the deceased.  It was him who

 

identified the deceased’s body at the mortuary.  His evidence does not implicate the

 

accused person in any way.

 

            I agree with the defence counsel that the evidence presented by the state is

 

insufficient to establish a prima facie case upon which the accused person may be put

 

on his defence.  It is unlikely in my view that a reasonable court would convict on the

 

basis of  the evidence at hand.

 

            More importantly vital police evidence has not been adduced.  Firstly the

 

accused person is challenging the admissibility and probative value of his warned and

 

cautioned statement on the grounds that it was not made freely and voluntarily. 

 

Whilst the onus rests on the accused person in this regard (the statement was

 

confirmed by a magistrate) that fact does not absolve the state from its duty to put

 

before the court evidence which prima facie would tend to show that the normal

 

procedures were complied with during the recording and confirmation process.  In the

 

absence of evidence from the police officer who recorded the statement and his

 

witness, if any, and the magistrate who confirmed it, the statement cannot stand. 

 

Allegations made in the state outline must be supported by evidence, particularly

 

 

 

 

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where no admissions have been made and moreso where the allegations are as in this

 

case denied.

 

            It is trite that a court may not convict an accused person purely on the basis of

 

a confession unless there is evidence aliunde corroborating the contents of such a

 

confession.  In this case it has not been established that the body retrieved at

 

Beitbridge is the same body identified at the mortuary as being that of the deceased. 

 

In fact there is absolutely no evidence of the recovery of the body.  Any reference to

 

such an exercise is to be found in the state outline and in the accused person’s warned

 

and cautioned statement.  It was imperative that the state adduces the evidence of the

 

police officers who recovered the body.  Accused is alleged to have made indications

 

leading to the recovery of the body.  These indications have not been included in the

 

evidence before the court.  We are informed that one of the police details has since

 

died and that the other is serving a prison term relating to another case.  No reason

 

has been advanced as to why the serving police officer has not been called.  It is

 

inconceivable that only these two police officers were privy to the investigations.

 

Surely other officers must have been involved at one stage or another.  None have

 

been called.  There is also the absence of a juvenile witness, one Mpho Mbedzi.  He is

 

alleged to have spotted the accused person driving a white pick up truck (similar to

 

that belonging to the accused person) in the vicinity of the disused mine shaft where

 

the deceased’s body was retrieved.  He is alleged to have observed the accused person

 

loading some boxes into the truck.  This was on 24 August 1999, two days after the

 

alleged murder.  The witness is alleged to have positively identified the accused

 

person as the person he had seen that day.  This witness has not been located. 

 

 

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His evidence is not before the court.  Nor is there any evidence from the police

 

describing the circumstances under which this witness had positively identified the

 

accused person.  The absence of his testimony and that of the police details who

 

investigated the case leaves a yawning gap in the state case.  Such evidence would

 

have corroborated the accused person’s warned and cautioned statement in several

 

material respects, assuming there had been evidence tending to show that the

 

statement had been freely and voluntarily made.

 

            Then there is the question of various exhibits which have not been placed

 

before the court through the witnesses.  The state alleges that most of the deceased’s

 

property including a .22 Colt pistol was recovered from the accused person.  None of

 

that property has been produced.  Again this is a serious gap in the state case.  No

 

explanation has been given for this omission.  Evidence in this regard would have

 

called for an explanation on the part of the accused person as to how he came into

 

possession of the deceased’s property.  It would also have corroborated the contents

 

of the accused person’s warned and cautioned statement in a material way.  The only

 

item referred to by two of the state witnesses as belonging to the deceased was the

 

blouse.  It  too was not produced.  If indeed all the property recovered from the

 

accused person is in police custody, why has it not been made available?

 

            The cause or probable cause of death has not been ascertained.  The post

 

mortem report does not refer to any evidence of trauma or injuries.  In his warned and

 

cautioned statement the accused says he had contaminated the deceased person’s cup

 

of coffee with a knock out drug.  The toxicology report says no traces of such drug

 

were detected.  There is thus no evidence to corroborate the accused person’s warned

 

 

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and cautioned statement in that regard.  On the contrary we have evidence from state

 

 witnesses that the deceased suffered from a thyroid condition and that she was

 

receiving medication for it.  That she had at some stage undergone cosmetic surgery

 

and had had implants which may become toxic if torn or ruptured.  Evidence has also

 

been led that the deceased’s marriage was on the verge of collapse.  The question that

 

arises from all this is whether the deceased was murdered in the first place.

 

            In his warned and cautioned statement the accused person says an accomplice

 

who has not been accounted for had returned to the deceased’s residence to fetch an

 

item he had dropped there.   Whilst there the accomplice had discovered that the

 

deceased had regained consciousness from the effects of the drug earlier administered

 

by the accused.  The accomplice had narrated to the accused how he had shot the

 

deceased in order that she would not disclose his identity.  The accomplice had then

 

bundled the body into the white pick up.  This statement is not directly inculpatory

 

in respect of the accused and its contents have not been corroborated by any other

 

evidence.  Besides it is a confession allegedly made by another person and would

 

ordinarily not be admissible against the accused person.

 

            Because the state is relying on circumstantial evidence, it is imperative that the

 

circumstances relied upon be placed before the court by way of evidence.  The only

 

evidence before the court is that which established that the accused person visited the

 

deceased at her residence on the date in question and presumably had dinner with her. 

 

That the deceased was subsequently seen at Beitbridge driving a vehicle similar to

 

that belonging to the deceased.  He was selling two watches and a blouse.  No

 

evidence has been led to show that these items belonged to the deceased.   It cannot be

 

 

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said that the only reasonable inference that can be drawn from these facts is that the

 

deceased must be the person who killed the deceased.

 

            The state argues that the accused person’s admissions in his warned and

 

cautioned statement in themselves constitute a prima facie case upon which the

 

accused should be put on his defence.  In this regard reliance was placed on the ruling

 

in S v Dube 1992 (1) ZLR page 234.  I agree with the defence counsel that that case is

 

distinguishable from the present case.  In the Dube case supra the accused person had

 

confessed to five counts of murder.  His warned and cautioned statement had been

 

confirmed by the magistrate.  He had subsequently challenged the admissibility of the

 

warned and cautioned statement.  The trial court had ruled against him.  In the present

 

case although the onus is on the accused person to prove that his confirmed warned

 

and cautioned statement is inadmissible, it is nonetheless imperative that the state

 

adduces evidence tending to show that the statement was properly obtained and

 

confirmed.  No such evidence has been adduced.  In the face of a challenge, the

 

statement cannot stand.

 

            Even assuming that the warned and cautioned statement was properly obtained

 

the state would find it difficult to satisfy the requirements of section 255B of the

 

Criminal Procedure and Evidence Act which provides as follows:

 

“Any court which is trying any person on a charge of any offence may convict him of any offence with which he is charged by reasons of a confession of that offence proved to have been made by him, although the confession is not confirmed by the evidence:

 

Provided that the offence has, by competent evidence other than such confession, been proved to have been actually committed.”

 

 

 

 

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            In the present case there is hardly evidence aliunde (save for the allegations in

 

the state summary), that the offence was committed nor is there evidence tending to

 

corroborate the contents of the warned and cautioned statement.  R v Taputsa and Ors

 

1966 RLR 662 A at 667E it was held that the effect of a provision such as the one

 

under section 255B of the code is that where there is evidence aliunde proving that

 

the offence was committed the court may satisfy itself of the genuineness of the

 

confession by the accused that he committed it or took part in it from the nature of the

 

confession itself.  “Where however there is no evidence aliunde proving that the

 

offence was committed, the court must in addition, go outside the confession and be

 

satisfied that it is confirmed by other evidence.”  In other words there must be

 

confirming evidence which corroborates the confession in a material respect.

 

            In theDube case (supra) the court had admitted the confession as, being freely

 

and voluntarily made and in all the five counts the body of the deceased had been

 

found in the Rangemore area of Bulawayo as confessed by the accused person.  The

 

accused had confessed to striking each deceased with a stone in the vicinity of the

 

head.  The post mortem had confirmed injuries consistent with that part of the

 

confession in respect of three of the bodies.  Stones had been found in close proximity

 

to three of the bodies.  The accused had confessed to have used stones in killing the

 

deceased persons.  In two of the counts the accused had been seen in the company of

 

the deceased persons prior to the commission of the offences.  The property of some

 

of the deceased had been found in the possession of the accused.  An eye witness had

 

given evidence of how he and the deceased in one of the counts had been lured by the

 

accused to a place in Rangemore where they had been given a certain liquid to drink

 

 

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which caused them to get drowsy.   He had managed to escape but the body of his

 

deceased friend was found in the area.  EBRAHIMJA observes as follows at pages

 

238H and 239A to B,

 

“In respect of each of the five counts however, it seems to me that there was evidence aliunde proving that the offence had been committed.  Five bodies were discovered, three of them exhibited signs of having been battered in the vicinity of the head.  Three of them had large stones lying nearby.  All of them were found in the Rangemore area.  They had all met their death between the

period extending from February 1987 to January 1988.  The conclusion to my mind, is inevitable that they met their death by foul means.  The appellant confessed that it was he who caused their deaths by these means.

 

Consequnetly the trial courts’ verdict that he was guilty of murder in respect of each count is unassailable whether on the basis that there is evidence aliunde establishing the commission of the offence supported by confessions or on the basis that his confessions are corroborated in material respects leading to the conclusion that they re genuine confessions.”

 

            It is unlikely that a reasonable court given the facts of the present matter

 

would convict the accused person on the basis outlined in Dube’s case supra or for

 

that matter any other basis.

 

            It appears to me that from the outset the state was ill prepared to prosecute this

 

case.  State counsel had complained that he had only taken over the matter from a

 

colleague the previous day.  Clearly he had not had sufficient time to prepare his case

 

given the gravity of the charge and the complexity of the evidence to be produced. 

 

He was invited to apply for postponement on that basis.  He declined the invitation. 

 

He would also have needed more time to ascertain the availability of his witnesses. 

 

He sought and was granted a day in which to arrange the upliftment of an important

 

witness from Beitbridge.  His efforts in that regard were fruitless.  He nonetheless

 

chose to proceed despite that major handicap.  He also was not in a position to lead

 

 

 

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the crucial evidence of the police details who investigated the matter.  He would have

 

needed more time to establish the whereabouts of those details who were still

 

available and to secure their attendance.  As a result he failed to lead basic run of the

 

mill evidence.  The outcome was inevitable.

 

            It was for these reasons that the application for a discharge at the close of the

 

state case was granted.  The accused person was accordingly found not guilty and

 

discharged.

 

 

 

 

 

Attorney General’s Officeapplicant’s legal practitioners

James, Moyo-Majwabu & Nyonirespondent’s legal practitioner