MOFFAT TEKA
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHATUKUTA & MUSAKWA JJ
HARARE, 13 February 2017, 6 and 13 March 2017, 9 and 16 October 2017 and 21 March 2018
Criminal Appeal
T Muganhiri, for the appellant
E. Nyazamba, for the respondent
MUSAKWA J: We dismissed the appeal against conviction and sentence and gave reasons extempore. Subsequently a request was made for “reasons for judgment” and we hereby avail the full judgment.
The background is that the appellant was convicted of one count of rape and two counts of unlawful entry into premises. In respect of the rape count the appellant was sentenced to 20 years’ imprisonment. For the two counts of unlawful entry the appellant was sentenced to 18 years’ imprisonment of which 5 years were suspended for 5 years on condition of future good behaviour.
Although appeal was noted against conviction and sentence in all counts, ultimately the appeal against conviction was restricted to the rape count. In any event the appellant pleaded guilty to the charges of unlawful entry and would have struggled to upturn the convictions. The appellant was convicted of the rape charge with two other co-accused.
It is not in dispute that the appellant and his companions entered the complainant’s house in Cowdray Park Bulawayo in the early hours of the morning on 3rd October 2011. The third co-accused who was armed with an axe emerged from behind the refrigerator and ordered the complainant to cover herself with blankets. The third co-accused demanded a cell phone and money of which the complainant handed her bag. The complainant was ordered by the third co-accused to undress. Later a person went into the bedroom and raped the complainant. The person spoke in Ndebele. The complainant also heard people ransacking the house. The third co-accused later told the complainant to cover her head before the intruders left the house.
On 14 October 2011 there was a repeat break-in at the premises in the first count. An assortment of goods valued at $580 was stolen. Then on 17 October 2011 there was unlawful entry into a different house in the same suburb. Again, a variety of items were stolen. Some of the stolen property was subsequently recovered and this provided the link to the appellant and co-accused.
In denying the rape charge the appellant claimed that he was in a hurry as he feared arrest by neighbours. Thus he did not have the opportunity to rape the complainant. Although he admitted entering the complainant’s house he denied entering the bedroom. He demanded money and a cell phone and got out of the house.
In his evidence the appellant conceded that he was found in possession of a radio, two cell phones, two skirts and one pair of tennis shoes. He now claimed that the items were brought to his house by the second accused whom he stayed with. He claimed to have purchased the cell phones and skirts for $47. The second accused told him to keep the radio until he had secured alternative accommodation.
During cross-examination the appellant claimed that he had lied in his defence outline. He also conceded that when he gave the outline he was aware that the property recovered from him had been stolen from the complainant when she was raped. He claimed to have been forced by Police Officers and co-accused to give the version that he outlined in his defence.
The issues on conviction relate to identification of the appellant as well as whether he was liable for the rape on the basis of common purpose. Mr Muganhiri submitted that the complainant only identified the third accused. He further submitted that during the trial the complainant did not even make a dock identification of the appellant. As such, an inference of common purpose is not supported by the facts. This is because different items went missing in the first and second counts.
On sentence, Mr Muganhiri submitted that the trial court did not apply guidelines provided in s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. As such, it was his contention that the sentence becomes excessive on account of the trial court’s failure to apply the guidelines.
On the other hand Mr Nyazamba submitted that the facts of the matter are common cause. If the appellant was present during the commission of the crime, then common purpose applies. On sentence Mr Nyazamba submitted that what Mr Muganhiri submitted on was not in the grounds of appeal.
The trial court was correct to hold that the persons who unlawfully entered the complainant’s house did not do so with the express intention to rape. However, it went further to reason that the issue was whether there was realisation of the real risk or possibility that the complainant might be raped during the course of the unlawful entry.
Section 15 (1) of the Criminal Law (Codification and Reform) Act provides that-
“Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components¾
(a) a component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that¾
(i) his or her conduct might give rise to the relevant consequence; or
(ii) the relevant fact or circumstance existed when he or she engaged in the conduct; and
(b) a component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a), the person whose conduct is in issue continued to engage in that conduct.”
Applying the above provision, the unlawful entry was always going to be perpetrated in aggravating circumstances. This is because the appellant and co-accused were never going to unlawfully enter the premises without committing some crime. The original intention was to steal. At that late hour and within the confines of the two roomed house, it is inescapable that the appellant could not have failed to hear the complainant being ordered by one of his colleagues to undress. Consequently, it must be inferred that the appellant must have heard the command for the complainant to undress. This means then that he must have become aware of the risk of rape which he nonetheless associated with recklessly, whether or not the complainant would be raped.
The other aspect to consider is the liability of the appellant as an accomplice. In this respect s 195 of the Criminal Law (Codification and Reform) Act which defines accomplice as follows-
“accomplice” means a person, other than an actual perpetrator of a crime¾
(a) who incites or conspires with an actual perpetrator to commit a crime, with the result that a
crime is subsequently committed; or
(b) who, having authority, whether lawful or otherwise, over an actual perpetrator and¾
(i) knowing that an actual perpetrator intends to commit a crime; or
(ii) realising that there is a real risk or possibility that an actual perpetrator intends to commit
a crime; authorises the actual perpetrator to commit the crime; or
(c) who¾
(i) knowing that an actual perpetrator intends to commit a crime; or
(ii) realising that there is a real risk or possibility that an actual perpetrator intends to commit
a crime; renders to the actual perpetrator any form of assistance which enables, assists or encourages the actual perpetrator to commit the crime;”
An accomplice can also be liable for an additional crime that is committed by the actual perpetrator. This is provided in s 199 which states that-
“Where an actual perpetrator commits a crime that is different from or additional to the crime intended by the accomplice when the accomplice incited, conspired with, authorised or assisted the actual perpetrator, the accomplice shall be guilty of that different or additional crime if, when the accomplice incited, conspired with, authorised or assisted the actual perpetrator, the accomplice realised that there was a real risk or possibility that the actual perpetrator might commit the different or additional crime.”
As already observed earlier on, within the confines of the complainant’s two roomed house, the appellant must have been aware that the complainant was about to be raped. Therefore the appellant’s liability is part of common purpose arising from his association with co-accused. S v Mubaiwa 1992 (2) 362 (S) is authority on common purpose which cites some of the leading cases on the concept. In that case it was held that each individual to a common purpose is to be judged on his own state of mind. In addition, the conduct on which criminal liability is founded is the act by which the accused associates with the common purpose.
Applying the principles enunciated in S v Mubaiwa supra, having heard such a command for the complainant to undress, the appellant must have associated with it with the real risk or possibility that one of his colleagues might rape the complainant. It was immaterial that the appellant’s conduct did not itself directly contribute to the commission of the rape. Therefore the rape was committed by all the intruders because none of them dissociated themselves after the complainant was ordered to undress and eventually raped. I therefore find no merit in the appeal against conviction.
Coming to sentence, the notice of appeal attacked it principally on two grounds. The first contention was that the trial court erred in sentencing the appellant on the basis that there was an attempt to rape the complainant in the third count when no evidence was led in that regard. The other ground was that the cumulative sentence imposed on the appellant was excessive as the trial court ought to have ordered part of the sentences imposed separately to run concurrently. As previously noted, counsel for the appellant did not address these issues during his submissions. He opted to raise a totally new issue without having amended his grounds of appeal. We found merit in the observation by state counsel that effectively there was no appeal against sentence.
It is for the above reasons that the entire appeal was dismissed.
CHATUKUTA J agrees ……………………..
Machaya & Associates, appellant’s legal practitioners
