Onus, Burden and Standard of Proof re: Trial Within a Trial and the Assessment of Admissibility of Evidence

SSC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

The appellant and another, who is not a party to this appeal, appeared before the High Court sitting at Harare, charged with one count of murder.

After a contested trial, they were found guilty of murder with actual intent and were sentenced each to 25 years imprisonment.

It was the finding of the court a quo, that, on 11 March 2011, they had unlawfully and intentionally caused the death of one Alneshto Bayeta by pushing him down a steep slope into Marongora Game Park which is infested with wild animals.

This is an appeal against both the conviction and the sentence.

Background Facts

The appellant, then aged 20, and his co-accused, not much older, were working in Chirundu, digging trenches for a telecommunications corporation. When the contract ended, the two survived on odd jobs for some time thereafter. They soon ran out of money and planned to steal a vehicle.

On 11 March 2011, they approached the deceased, who was working as a taxi driver, driving a vehicle belonging to one Leonard Mhundwa, and purported to hire the vehicle to Chirundu Heights. This was around 9:00pm.

On the way to Chirundu Heights, they robbed the deceased of the vehicle and tied him up before placing him in the back of the vehicle. They then drove along the Harare-Chirundu Road, and, at a certain spot where the Marongora Game Park slopes steeply from the road, stopped the vehicle and there left the deceased.

When the deceased did not return with the vehicle at the appointed time, Leonard Mhundwa, the owner of the vehicle, lodged a report with the police. Investigations led to the arrest of the appellant and his co-accused who were found in possession of the motor vehicle.

After the arrest of the appellant and his co-accused, a search for the body of the deceased was conducted around the spot at which the appellant and his co-accused had left the deceased. The search was conducted with the assistance of armed Rangers from the Department of Parks and Wildlife who know the area to be infested with wild animals.

Some 20 metres down the slope, a spoor showing that something had been dragged along was observed going down the slope. Along the spoor, torn and blood-stained clothes and sandals belonging to the deceased were recovered.

The body of the deceased was not.

Presuming the death of the deceased, at the time of the trial, as the only reasonable inference that could be drawn from the facts, the court a quo found the appellant and his co-accused guilty of murder and sentenced them as stated above.

The Appeal

Aggrieved by the conviction and the sentence, the appellant noted this appeal raising five grounds of appeal.

In the first three grounds, he challenged the admissibility into evidence of a warned and cautioned statement that he made to the police upon his arrest.

It was his argument that the court a quo erred in admitting the statement into evidence in the face of clear evidence that he had not made the statement but that he was given the statement by the police to sign.

He further argued, that, the statement was irregular as it was “re-taken” on the orders of the confirming court after that court had declined to confirm the first statement.

In his view, apart from the confession in the statement, there was no evidence implicating him in the commission of the crime.

As against the conviction proper, the appellant challenged the sufficiency of the evidence against him arguing that the court a quo drew improper inferences that he had committed the crime.

Finally, he argued that the sentence imposed upon him was severe and induced a sense of shock.

From the above grounds, three issues arise for determination in this appeal. These are;

(i) Firstly, whether the appellant's warned and cautioned statement was correctly admitted into evidence;

(ii) Secondly, whether the appellant was properly convicted of murder; and

(iii) Finally, whether the sentence imposed on the appellant is severe and induces a sense of shock....,.

Whether the confirmed warned and cautioned statement by the appellant was admissible evidence

The appellant and his co-accused were arrested on 1 April 2011. Four days later, on 5 April 2011, the investigating officer recorded a statement from the appellant after duly warning and cautioning him on his rights.

On 12 April 2011, the appellant was taken before a magistrate for the confirmation of the statement. He successfully challenged the confirmation of the statement on the basis that the statement was not his and that he had not made it voluntarily.

The confirming magistrate correctly declined to confirm the statement.

However, without citing any law for his decision, the magistrate thereafter ordered the appellant and the investigating officer to record a second statement.

The second statement was recorded the following day and was confirmed on the same date.

In challenging the second statement during the trial a quo, the appellant alleged, that, he had been threatened by the investigating officer with assault if the second statement was once again not confirmed. He thus did not inform the confirming magistrate that the statement was not his but that it was merely presented to him for signing.

It appears that the court a quo was not quite clear on the steps to take in dealing with the challenge.

The admissibility of the statement was challenged in the Defence Outline and orally in court when the prosecution tendered the statement with the other exhibits at the commencement of the trial.

In a terse, but correct ruling, the court a quo provisionally admitted the statement into evidence with the other exhibits and placed an onus on the appellant to rebut the admissibility of the statement.

The court was correct in provisionally admitting the statement into evidence, as, on its face, there was nothing irregular.

During the State case, the investigating officer gave evidence on how he had recorded the statements from the appellant, and, during his evidence-in-chief, the appellant in turn gave evidence on how the statement was taken.

He maintained his stance that the statement was not his as certain portions of it were insertions by the police.

In the main judgment, the court a quo held, that, the appellant, through his counsel, had withdrawn his objection to the admission of the statement into evidence.

This was contrary to the evidence on record.

And, to confirm the uncertainty that the court a quo appears to have been operating under regarding what to do with the challenge to the statements, it initially held that it was unnecessary for it to establish whether or not the second statement had been voluntarily made by the appellant as the appellant had withdrawn his objection to the admission of the statement.

Moments later, it observed that:

“Although the warned and cautioned statements were produced by consent after the accused had withdrawn their objections, it is in my view necessary to deal with the accused's evidence of the alleged duress because of the continued reference to the statements by the accused persons. Mr Mushonga submitted that the accused were not challenging the confirmation of the statements per se but the decision by the magistrate to confirm a new set of statements.”

The court then proceeded to find that the appellant had not been unduly influenced in making the statement.

The law on the admissibility of confirmed statements is codified. It is settled.

Section 256(2) of the Criminal Evidence Act [Chapter 9:07] provides that a confession or statement made by an accused person and confirmed before a magistrate following the procedures laid down in section 113(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] is admissible in evidence before any court upon its mere production by the prosecutor without further proof.

However, the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto.

In a long line of decided cases, the steps that a court must take where an accused person challenges a confirmed warned and cautioned statement is settled. It is this:

Where the accused raises a potentially sustainable challenge to the propriety of the confirmation proceedings, the court is obliged to determine the validity of that challenge as a separate issue of fact.

The onus is on the State to prove the absence of any irregularity.

If the State discharges the onus, the statement is provisionally admissible and the onus shifts to the accused to rebut the presumption that the statement is admissible.

The onus of proof, on the accused, is to prove, on a balance of probabilities, that, the statements are inadmissible.

If the accused's challenge is upheld, the onus remains on the State to prove, beyond a reasonable doubt, that the accused made the statement and that he made it freely and voluntarily: see S v Woods 1993 (2) ZLR 258 (SC); S v Slatter and Others 1983 (2) ZLR 144; S v Manukwa and Others 1982 ZLR 30 (SC); and S v Gwaze & Anor 1978 RLR 13…,..

Against the yardstick set by the above authorities, the court a quo erred in many respects which I will not fully go into.

Primarily, as this was its ratio decidendi, the court a quo erred in holding that the appellant had withdrawn his challenge to the statement.

The record indicates that the appellant consistently denied having made the statement which he alleged was a confession to the offence.

The court a quo was aware, that, right up to the end, the appellant challenged the statement attributed to him. He thus “continued to make reference” to the irregularity of the statements throughout the trial as rightfully observed by the court a quo in its judgment.

In the absence of consent to the admission of the statement, the court a quo had to make a finding of fact on whether or not the statement was admissible evidence.

This it did not do.

I must make the point, that, contrary to the finding by the court a quo, that the confirming magistrate did not err in directing the police to record a statement from the appellant afresh, the recording of the second statement from the appellant was irregular and must be set aside.

The court a quo was of the view, that, since the appellant had not advanced any law that precluded the recording of the statements afresh, the order by the magistrate was proper.

Such a law is easy to find and ought to have presented itself to the court a quo.

The recording of extra curial statements from the accused is part of the investigation of the alleged crime. It is an exercise that falls wholly within the domain and discretion of the police. They, and not the court, elect whether or not to record a statement from the accused.

In our legal system, which is adversarial, and the magistrate or judge is a neutral umpire, the magistrate, or judge, has no role or place in the investigation of matters that come before the court.

Therefore, he or she cannot direct the investigation of the alleged crime at any stage.

It matters not that he or she will not tell the accused person on what to say in the statement as was contended by the court a quo. The bottom line is that the court has no power, whatsoever, to direct the police to record a statement from the accused person at any stage of the investigations or of the trial.

It is thus over-reaching of grave proportions for confirming magistrates to direct the police to record second statements from accused persons after declining to confirm the first statement.

Even if the statement that is eventually recorded from the accused is exculpatory, the bottom line is that a directive by the court, to the police, to record a statement from the accused is grossly irregular and so is the statement that is recorded pursuant to such a directive.

I note, in passing, and for the benefit of the Chief Magistrate, that, the directive to the police by the confirming magistrate in casu appears similar to one that was issued by the confirming magistrate in Mangoma v S SC36-20 in which this Court also set aside the statement.

The police may feel obliged to comply with such directives which not only have no basis in law but may violate the rights of an accused person to a fair trial.

I do not think that it is necessary to burden this judgment with a discussion on whether or not there is a law that precludes the police from recording a second set of statements from an accused person after the confirmation of the first has been declined.

It however presents itself clearly to me that the recording of a statement from an accused person by the police, whether first or subsequent, at the instance of, and in fulfilment of a directive of the court, is grossly irregular.

It is therefore my finding that the court a quo erred in admitting into evidence the statement by the appellant on the basis that it was adduced by consent.

There was no such consent.

Had the court a quo followed the approach laid out in the authorities cited above, it would have found, as I do, that the recording of the statement was irregular as it was at the instance of the court.

The confirmed statement by the appellant, dated 13 March 2011, must be struck off the record, and, any reference to its contents be expunged from the evidence.

The finding that I make above must apply with equal force to the statement made by the appellant's co-accused on the same date. This is so notwithstanding that he is not a party to this appeal. His statement was recorded in similar irregular circumstances.

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.Against that order, the appellant now appeals to this court.BACKGROUNDIn October 2012, the appellant, as plaintiff, issued summons against both ...

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.

Against that order, the appellant now appeals to this court.

BACKGROUND

In October 2012, the appellant, as plaintiff, issued summons against both respondents before the High Court, Harare, claiming payment of the sum of $30,094=98 being arrear rentals in respect of the respondents tenancy of premises known as Shop 5, Zimre Centre, Corner Kwame Nkrumah Avenue and Leopold Takawira Street, Harare.

The second respondent had bound himself as surety and co-principal debtor in respect of the first respondent's indebtedness.

In their plea, the respondents, as defendants, raised the defence of prescription. More specifically, they averred, that, in instituting proceedings on 19 October 2012, more than three years after the debt became due, the claim had become time-barred.

The plea was not set down for hearing. Instead, the defendants pleaded over to the merits in the same plea.

In its replication, the appellant denied that the claim had prescribed. It averred, that, the first defendant had, on 22 October 2009, acknowledged the debt and had undertaken to pay the outstanding amount in full by 10 November 2009.

There was no rejoinder by the respondents.

In a joint pre-trial conference minute, the parties agreed, that, the issues requiring determination at trial were:

(a) Whether the plaintiff's claim had prescribed;

(b) Whether the first respondent had breached the lease agreement by failing to pay rental and other costs;

(c) Whether the respondents were liable to pay the sum of US$30,094=98 together with interest and costs of suit;

(d) Whether there had been mutual termination of the agreement between the parties and whether the appellant had unlawfully and unilaterally ejected the respondents from its premises; and

(e) Whether such conduct had resulted in the respondents suffering damages “in respect of the first respondent's assets and business” and, if so, the quantum thereof.

PROCEEDINGS BEFORE THE COURT A QUO

At the hearing of the matter, the respondents, through their lawyer, sought the leave of the court to deal with the issue of prescription first and lead evidence on it.

Despite opposition from the appellant, the court a quo decided that the issue of prescription be determined first, and, thereafter, depending on the outcome, the court would again hear evidence on the remaining issues.

In its judgment, the court a quo was of the view, that, the issue that fell for determination was the authenticity of the letter purportedly written by one Annet Mbedzi on behalf of Saintcor Holdings in October 2009.

In this regard, it made a number of observations.

The letter was not written on any letterhead, unlike in previous correspondence; it reflected the appellant's postal address; the letter was also written on behalf of Saintcor Holdings, a company both parties were agreed does not exist and was not a party to the lease agreement; the letter was addressed to a Mr Muringani, but, the name had been cancelled in black ink and in its place the name Muringi inserted; nowhere in the letter is it suggested that Saintcor Holdings was acknowledging indebtedness on behalf of Saintcor (Pvt) Ltd.

On a consideration of all these features, the court a quo concluded, that, the letter had not been written on behalf of the first respondent.

Consequently, the court upheld the plea of prescription and dismissed the plaintiff's claim with costs, hence this appeal.

GROUNDS OF APPEAL

In its grounds of appeal, the appellant has attacked the decision of the court a quo on the basis that it:

(a) Erred in fact and at law in holding that the appellant's claim had prescribed;

(b) Misdirected itself by holding that the letter that was received by the appellant on 22 October 2012 was not authentic;

(c) Misdirected itself by making a finding that the author of the letter that was received by the appellant on 22 October 2009 did not have authority to author the same.

It is apparent from the above grounds, that. it is the conclusion reached by the court a quo, that the letter in question had not been written on behalf of the respondent that the appellant is challenging.

PRELIMINARY ISSUES RAISED BY THE RESPONDENTS

In their heads of argument, the respondents raised two points in limine:

(i) The first was that the judgment of the court a quo reflects three different dates as the dates when the judgment was handed down.

The date of the judgment reflected in the Notice of Appeal is at variance with the date appearing ex facie the judgment itself, and, consequently, there has been no compliance with Rule 29 of the Rules of this Court.

(ii) Secondly, the relief sought is defective as it seeks to substitute the decision of the court a quo with one referring the matter back to the court a quo itself.

In his response, counsel for the appellant drew the attention of the court to a letter from the Registrar of the High Court which states, that. the ex-tempore judgment was handed down on 10 February 2015, which is the date appearing in the Notice of Appeal.

On the prayer, he conceded, that, the wording was inelegant but argued that the relief sought was clear. He submitted that the inelegance does not invalidate the appeal as ultimately the court will make an order it deems appropriate in the circumstances.

After hearing argument on the two preliminary issues, this court was of the view, that, the issues be rolled over for determination together with the issues that arise on the merits.

APPELLANT'S SUBMISSIONS ON APPEAL

In both his heads of argument and oral submissions, counsel for the appellant raised the following issues:

(i) First, that the judgment of the court a quo does not derive from the pleadings.

(ii) Second, the appellant's cause of action was predicated upon a valid cancellation of the lease agreement. Such cancellation was effected on 18 November 2009 and the cause of action would have accrued on that day. Therefore, when the appellant issued summons on 22 October 2012, the debt had not prescribed.

(iii) Third, that the appellant would have had no reason to cause the letter of 22 October 2012 to be generated. Once it had accepted that the letter had not been generated by the appellant, the court should have concluded that the letter had indeed been authored by the respondents.

(iv) Fourth, that the second respondent knew how to contact Annet Mbedzi, the author of the letter in question. Annet Mbedzi had been involved in the goings-on at the premises of the first respondent, and yet both respondents had not found it proper to call him.

(v) Lastly, counsel for the appellant submitted, that, it was improper for the court to have heard evidence piecemeal. Once the plea of prescription had not been set down and the respondent had then proceeded to plead over to the merits, the court should have heard evidence on all the issues and an assessment of the credibility and integrity of the witnesses undertaken only after all the evidence had been led.

RESPONDENTS SUBMISSIONS ON APPEAL

In response, counsel for the respondents made the following submissions:

(i) First, that, what is being attacked by the appellant are findings of fact which cannot be interfered with on appeal in the absence of a finding of irrationality on the part of the trial court.

(ii) Second, that, the court a quo was correct in its findings that the letter received by the appellant on 22 October 2009 had not been written by or for the respondents. This is because the appellant had admitted that, by that date, the first respondent had been evicted from the premises, and, consequently, the first respondent would not have used that address in correspondence with the appellant.

(iii) Third, that, the appellant has not established a lawful basis for the suggestion that the judgment does not derive from the pleadings as no leave of the court had been sought to advance argument on this ground, contrary to the Rules of this court. In any event, the respondents, in their plea, had placed prescription in issue.

(iv) Lastly, that, the debt did not become due on cancellation since rent was due monthly in advance, and, therefore, the cause of action arose whenever such rental was not paid on due date. The appellant had, in any event, evicted the first respondent in August 2009 for non-payment of rent and the “debt” included outstanding rentals up to the date of such eviction.

ISSUES FOR DETERMINATION

It is clear from the above, that, a number of issues arise before this court. These will be dealt with in turn....,.

WHETHER THE COURT A QUO ERRED IN DEALING ONLY WITH THE ISSUE OF PRESCRIPTION

As noted earlier in this judgment, the special plea was not set down for hearing, but, instead the respondent pleaded over.

At the trial, the respondents requested the court to deal with the question of prescription first.

Despite protestations by the appellant on the proposed course, the court a quo determined that a full trial on the issue of prescription be held, and, if the plea failed, the court would then hear evidence, again, and determine the remaining issues referred to it for trial.

The decision by the court a quo to split the trial into possibly two was one based on its discretion.

I have not found any authority, nor has any been pointed out to me, which suggests that such an approach is wrong.

However, my view of the matter is that the approach is undesirable and somewhat irregular.

Once a matter is referred to trial on identified issues, it is desirable that all the issues be dealt with at the same time. Witnesses should be called once to give evidence on all issues.

The approach adopted by the court in this instance may have the undesirable effect that a witness will be called to give evidence twice in the case and before the same court. This may complicate the determination of issues of credibility and probabilities as the court would have to consider the evidence given by a witness on two different occasions in the same matter.

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

The accused, who resides in Village 25, Chief Sengwe, Chiredzi, is facing two counts.

In Count 1, the accused is facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], in that, on 18 June 2015, at Gonowani Village, Headman Mpapa, Chiredzi the accused stabbed the now deceased, Stephen Chikucha, with an unknown sharp object in the chest causing his death.

In Count 2, which relates to attempted murder, defined in section 189 as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it is said, that, on 29 June 2015, at Murengwami Village, Headman Mpapa, Chief Sengwe, Chiredzi the accused attempted to kill Onias Chibhombise by stabbing him with an okapi knife in the neck.

The accused totally denies the charges in both Counts. In fact, the accused said he was unknown to both the now deceased in Count 1 and the complainant in Count 2. The accused said he does not even know the alleged crime scenes in both Counts.

As regards Count 2, of attempted murder, the accused said, at the time the alleged offence was committed, he was at his residence with his parents and nowhere near the crime scene.

During the State case, the prosecutor led evidence from Beauty Aleck in Count 1; Onias Chimbombise, complainant in Count 2; Amos Chinherera in both Counts 1 and 2.

The evidence of John Makondo, Dr Tungamira Isaac Rukatya and Dr Mutengerere was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

It was during the evidence of D/Assistant Inspector Victor Chinoni (D/Assistant Inspector Chinoni) that counsel for the State sought to produce the accused's unconfirmed warned and cautioned statement and counsel for the accused objected.

The basis of counsel for the accused's objection was that the said unconfirmed warned and cautioned statement was inadmissible on the basis that it was improperly obtained.

Counsel for the State submitted, that, she intended to rely on this statement in the prosecution case and proceeded to apply to conduct a trial within a trial.

This judgment, therefore, solely concerns itself with a trial within a trial in order to determine the admissibility of the unconfirmed warned and cautioned statement made by the accused.

This statement in issue was made during video recording.

In order to determine its admissibility, the court had to watch, in camera, the recorded video. The written statement was not obviously produced at this stage. Further, in view of the nature of the State case, I decided to watch the video recording and make a determination in the absence of the learned Assessors Messrs CHADEMANA and MUSHUKU.

During the trial within a trial, the State led evidence from D/Assistant Inspector Victor Chinoni (D/Assistant Inspector Chinoni) who recorded the statement in issue, D/Sgt Thulisani Moyo who witnessed the recording of the warned and cautioned statement, and D/Cst Benard Chimbeke who operated the video camera.

The accused gave evidence.

Before dealing with the evidence led during the trial within a trial, I shall briefly discuss the law in relation to unconfirmed extra curial statements and their admissibility.

THE LAW

The rights of an arrested and detained person are provided for, inter alia, in section 50; section 52(a); and section 70(3) of our Constitution.

In brief, section 50 of the Constitution provides for the rights of an arrested and detained person; section 52(2)(a) protects any person from all forms of violence whether from public or private sources. In terms of section 53 of the Constitution, no person shall be subjected to physical or psychological torture, or to cruel or, inhuman or degrading treatment or punishment. Section 70 deals with the rights of any person accused of any offence, and, specifically, section 70(3) provides as follows:

“(3) In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interests.”

Section 50(1)(c) of the Constitution requires that an accused person be treated humanely and with respect for their inherent dignity. In terms of section 50(4)(c), an accused person has a right not to be compelled to make a confession or an admission.

All these are fundamental rights this court is enjoined to protect during criminal proceedings, and, as provided in section 86(3) of the Constitution, some of these rights are non-derogatory rights and may not be limited or violated.

Section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with the admissibility of confessions or statements made by an accused person.

It is important to note, that, this relates to either written, oral, tape, video recorded or statements made in other forms: see S v Nkomo & Anor 1989 (3) ZLR 124F–125A.

The essential requirements of admissibility of such an accused's statement or confession is that it should have been made freely and voluntarily without the accused being unduly influenced thereto.

It is beyond the scope of this judgment to discuss what is undue influence. I shall therefore limit myself to what the accused alleges was done to him to compel him to give the warned and cautioned statement in issue.

Suffice to mention, that, generally, undue influence entails anything repugnant to fairness and the fundamental principles upon which our criminal justice system is based. These include, inter alia, improper manner of questioning or interrogation which may be aggressive and unduly lengthy; unnecessary confrontation meant to bring pressure to bear upon an accused person; physical maltreatment or violations visited upon an accused person, or such threats; inducements like promised release from custody, special treatment, privileges or offers of reward or leniency; and denial of rights like access to legal representation or presence of a guardian where juveniles are involved.

Indeed, the list is endless, and each case depends on its own facts.

It is trite, that, the onus is on the State to prove, beyond reasonable doubt, that the statement an accused person alleges was improperly made is admissible: see R v Jacobs 1954 (2) SA 320 (A).

Lastly, I would hasten to point out that the nature of the statement (that is whether confirmed or unconfirmed) and the nature of an accused person's challenge determines whether a trial within a trial is necessary.

It should be borne in mind, that, a trial within a trial is held to establish a question of law, the admissibility of the challenged statement, and not a question of fact like whether an accused person made the statement or not. The latter is a factual issue which can be resolved by leading evidence in the main trial to establish whether the accused made the statement or not: see S v Shezi 1994 (1) SACR 575.

I now proceed to apply these principles in this case.

THE ACCUSED'S EVIDENCE

The unconfirmed extra curial statement the State seeks to rely upon is a written statement which the accused made during a video recording. The nature of the accused's challenge is that it was not made freely and voluntarily hence it is inadmissible.

It is common cause that an attempt was made by the police to have this statement confirmed at Chiredzi Magistrates Court and that it was not confirmed as a result of the accused's objections. What is critical to note, however, is that, at the Magistrates Court, the nature of the accused's objection or complainant in relation to this statement was that he had simply been “intimidated”.

In his Defence Outline, made during a trial within a trial, the accused said he only made the statement after being physically violated or assaulted. He said threats of further assault were made if he did not accede to the police's demands to admit to the charges. The accused, in that Defence Outline, went on to narrate the sequence of events:

(i) Firstly, the accused said he was assaulted by D/Assistant Inspector Chinoni and D/Sergeant Moyo on 2 July 2015 at Chikombedzi Police Station before being taken for indications.

(ii) Secondly, the accused said the police details forced him to admit to the charges, telling him that he had committed these offences for ritual purposes based on some alleged superstitious belief. The accused said he was forced to admit that he committed the offences in Counts 1 and 2 in order to extract human blood from the victims under the superstitious belief that such human blood would heal his back pains.

(iii) Thirdly, he said at the alleged crime scenes, in Count 1 and Count 2, he was further assaulted.

(iv) Fourth, the accused said in the morning when his statement was later recorded at ZRP Chiredzi, D/Assistant Inspector Chinoni and D/Sgt Moyo handcuffed him. Thereafter, he was forced to place his hands between his legs. A log was then put behind his elbows, which log was suspended on two desks. While in that painful position the accused said the two police details assaulted him under the feet and on his buttocks. He said the assault continued until, due to pain, he admitted to the charges in both Counts. The accused said that it was after this brutal assault, which culminated in his admission, and that the statement in issue was then video recorded.

I understand from this Defence Outline, that, the accused's contention is that this statement is inadmissible as it was improperly obtained contrary to the provisions of section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Further, the accused is alleging that his constitutional rights were violated as he was compelled to make a confession or admission contrary to the provisions of section 50(4)(c) of the Constitution.

Lastly, the accused is alleging that this statement is improperly obtained evidence contrary to the provisions of section 70(3) of the Constitution and that its admission would render this whole trial unfair and not in the interests of the proper administration of justice.

When the accused took the witness stand, his version was as follows:

He said after being detained at ZRP Chikombedzi he first met the four CID details from Chiredzi on 30 June 2015 when they took him from the cells and interrogated him about the two Counts which he denied. Thereafter, he said an identification parade in relation to Count 2 was conducted.

He said his woes started soon after this identification parade.

The accused said the CID details said that he, the accused, was wasting time denying the offences when in fact he had been identified during the identification parade.

The accused said he was then physically violated as follows;

(a) At ZRP Chikombedzi he said D/Assistant Inspector Chinoni and D/Sgt Moyo hit him about twenty times under the feet after which they drove him to Chiredzi police station.

(b) The next morning, at ZRP Chiredzi, he was taken from the police cells and questioned about the two offences which he denied. He was again hit under the feet by D/Assistant Inspector Chinoni and detained. Later that day, he was taken for indications.

(c) During indications at the alleged crime scenes, he said D/Assistant Inspector Chinoni pulled out a firearm threatening to shoot him if he persisted in denying the offences and had to be restrained by D/Sergeant Moyo. At the alleged crime scenes, both D/Assistant Inspector Chinoni and D/Sergeant Moyo narrated to him how the offences in both Counts were committed after which he was forced to recite that account as he was video recorded. Thereafter, he was taken to his home in order to recover the knife used in the alleged commission of the offense and a brown jacket they alleged he was wearing despite that he had no such items. They returned to ZRP Chiredzi.

(d) The next day, at ZRP Chiredzi, on 3 July 2015, he was taken from the police cells and again asked about the offence which he denied. He was then handcuffed and positioned in the manner already explained in his Defence Outline after which both D/Assistant Inspector Chinoni and D/Sergeant Moyo severely assaulted him until he admitted to both charges. Thereafter, he was questioned and forced to narrate how he allegedly committed the offences, without any video recording being made, in the manner police had told him. He complied.

(e) After such compliance, the video recording of the warned and cautioned statement played in court was then done. The accused said he simply repeated what he police had told him to say. Thereafter, he was taken to court for confirmation proceedings.

(f) The accused said, at court, he naturally disowned the statement improperly obtained and showed the presiding Magistrate the injuries on his swollen hands caused by the handcuffs and also revealed that his feet were painful. The statement was not confirmed.

THE STATE'S EVIDENCE

The State led evidence from three CID details, D/Assistant Inspector Chinoni who recorded the statement; D/Sergeant Moyo who witnessed the recording of the statement; and D/Cst Bernard Chimbeke who took the video or recorded the proceedings on the video.

1. D/Cst Benard Chimbeke (D/Cst Chimbeke)

D/Cst Chimbeke said his task was to simply capture the proceedings of the recording of the warned and cautioned statement on the video. He disputed that any pressure or force was brought to bear upon the accused. He said the accused was never intimidated, assaulted, or forced to give the statement. He was also part of the CID details who took the accused from ZRP Chikombedzi to Chiredzi, a distance of about 120km.

No useful questions were put to him in cross examination.

2. D/Sgt Thulisani Moyo (D/Sgt Moyo)

D/Sgt Moyo is the investigating officer in both Counts but his role, in respect of the statement, was to witness its recording in writing and on video. He said, after the accused's rights were explained, the accused, whom he described as very co-operative, elected to give a statement. He too denied that the accused was intimidated, forced, assaulted, or threatened to give the statement. D/Sgt Moyo dismissed the accused's allegations of impropriety as false.

Under cross-examination, D/Sgt Moyo said he only later learnt that the accused had disowned the statement at court during confirmation proceedings alleging what the accused called “police intimidation”. He said they could not record the accused's warned and cautioned statement at ZRP Chikombedzi, where they went to collect the accused, as they had no video camera. He said the accused, at ZRP Chikombedzi, initially denied the charges but changed his version later at ZRP Chiredzi.

3. D/Ass Insp Victor Chinoni (D/Ass Insp Chinoni)

D/Ass Insp Chinoni is the detail who recorded the accused's statement and is implicated by the accused.

D/Ass Insp Chinoni said he is part of CID details who took the accused from ZRP Chikombedzi to ZRP Chiredzi. At Chiredzi, both D/Sgt Moyo and D/Cst Chimbeke witnessed the recording of the warned and cautioned statement. He said he properly warned the accused of his rights and the accused gave his statement freely and voluntarily. Thereafter, the accused read the statement and signed it. He disputed that the accused was coerced, forced, or assaulted.

Under cross examination, D/Ass Insp Chinoni explained that three are two discs; one for the recording of the warned and cautioned statement; and the other for indications, which indications were not part of the trial within a trial. He said he is not part of the police details who took the accused to court for confirmation proceedings.

D/Ass Insp Chinoni said after the accused disowned the warned and cautioned statement at court, alleging intimidation, he had to play the video recording to the Officer in Charge CID to show how he recorded the statement, which was typed electronically and video recorded.

I noted, that, D/Ass Insp Chinoni was a very impressive witness. Besides being an eloquent speaker, his attention to detail and knowledge of his work is excellent. The professionalism he exhibited in recording the warned and cautioned statement, as seen on the video, is commendable.

Indeed, counsel for the accused understandably found it difficult to cross examine him, let alone to make any in-roads into his evidence.

On the other hand, the accused impressed me also as a soft, smooth, and eloquent speaker. His unassuming demeanour may be misleading.

Be that as it may. this matter cannot be determined on eloquence alone.

ANALYSIS OF EVIDENCE AND FINDINGS MADE

I had the opportunity to view the video recording of the warned and cautioned statement. I did note, that, throughout the recording, the accused was allowed to tell his story, presumably in his own words, without any interruptions: see R v Shaube-Kuffler 1969 RLR 78 (A).

The accused's narration of events is detailed and lengthy.

In the circumstances, it is highly improbable that all that detail were words put in the accused's mouth which he memorised.

It is precisely for this reason that I had to watch the video recording of the statement.

I had a keen interest to observe if there were any signs that the statement was improperly obtained or not made freely and voluntarily. At this stage, I was not worried much about the contents of the statements per se but to assess the accused's demeanour.

I however noted that the statement is detailed.

While the statement is incriminatory, it is also exculpatory in that the accused emphasised that he had no intention to kill any of the victims.

Turning to the video recording, I noted the following:

(1) The accused's rights were well explained and the accused listened attentively. The accused, who then elected to give the statement, was allowed to, given an uninterrupted account and D/Ass Insp Chinoni only sought clarifications after the accused finished his explanation. As already said, the statement is quite lengthy.

(2) The accused gave a coherent, free flowing account in Shona.

(3) Before even giving the statement, the accused sought clarification, from D/Ass Insp Chinoni, on where to start, and he was allowed to start from wherever he believed was relevant.

(4) As the accused gave the statement, he was seated on a chair. Despite that his hands were handcuffed, the accused was gesturing using hands to emphasize whatever he was explaining. He commenced his account from the time he said he was in South Africa in order to give background information for his alleged conduct.

(5) The accused articulated the dates, time, manner, and how he met the alleged victims.

(6) As the accused gave the statement, he did not exhibit any signs of discomfort and was not fidgeting, but seemed alive as to the serious nature of the proceedings.

(7) D/Ass Insp Chinoni only sought details or clarifications arising from the accused's own explanation, for example, if the accused knew the deceased or complainant before, or the description of the knife allegedly used, and its owner.

(8) After the statement had been typed/recorded, the accused was given the statement to read it himself. I noted that the accused took his time reading the statement to himself, as shown by the movement of his lips. He held the statement with both hands. The concentration exerted in reading the statement by the accused was evident as he moved from one page to the other.

(9) After confirming the correctness of the statement, the accused was asked to sign, and he inquired why he should sign, after which D/Ass Insp Chinoni explained the purpose of signing, and, thereafter, he signed.

(10) The video ends with the accused proceeding to make indications, which are not subject of this hearing. However, I observed that the accused, at the alleged scenes of crime, walked without any difficulty.

A proper analysis of the accused's evidence shows that the accused was not consistent in his outline of version of events.

The alleged assault twenty times under the feet, the threats made with a firearm, and the alleged rehearsal of events were all not part of the accused's Defence Outline.

Further, all these issues the accused later said in his evidence were not put to D/Ass Insp Chinoni or D/Sgt Moyo in cross-examination.

It is difficult, in the circumstances, to accept that this statement was foistered on the accused.

As the accused explained, the gestures he made were his own. The accused admitted that the questions he asked were also his own meant to safeguard his rights.

The alleged gaps in the video referred to by counsel for the accused are difficult to appreciate in light of the explanation by D/Ass Insp Chinoni and that the accused's alleged indications are not before the court.

After a careful analysis of the evidence, I find nothing to suggest that the accused was swayed by any external impulses or that any form of pressure was improperly brought to bear upon him to cause him to give the warned and cautioned statement. There is nothing to negative his freedom of volition.

This explains why, even before the Magistrate who declined to confirm the statement, the accused only alleged “intimidation” not the physical violence he now outlined, in an inconsistent manner, before this court.

If the accused had been assaulted, as he alleges, he would have said so to the Magistrate.

I am not persuaded by the accused's evidence, that, the very magistrate who declined to confirm his statement would fail to properly record the alleged impropriety the accused alleged to him or her let alone to fail to note the injuries the accused exhibited to the magistrate.

It is incredible to suggest that the magistrate ignored all that as accused now alleged.

I am satisfied that the State has discharged the evidential onus thrust upon it as regards the admissibility of the accused's unconfirmed warned and cautioned statement. It has been proved, beyond reasonable doubt, that, the accused made the statement freely and voluntarily without being improperly influenced thereto.

After making this finding, I have no discretion to exclude the accused's warned and cautioned statement.

In the result, it is my finding, that, the accused's unconfirmed warned and cautioned statement is admissible.

Accordingly, the accused's warned and cautioned statement is admitted, as Exhibit 5, which includes both the written statement and the accompanying video recording of that statement.

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

“Much ado about nothing.”; 'Storm in a tea cup.'

One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.

An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.

Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'

The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.

I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.

The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.

Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.

Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.

Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.

The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.

The issue, in other words, is dealt with administratively.

Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.

Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.

The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.

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SSC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

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Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

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Law Portal Zimbabwe

Onus, Burden and Standard of Proof re: Trial Within a Trial and the Assessment of Admissibility of Evidence

SSC84-21 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

View Appeal SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HHMA56-19 : THE STATE vs WONDERFUL MANJORO Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HHH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

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Law Portal
Zimbabwe

SSC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J