Criminal
Appeal
HUNGWE
J: The
appellant was jointly charged with two other persons with two counts;
namely attempted murder in contravention of section 189 as read with
section 47 of the Criminal Law (Codification and Reform) Act,
[Chapter
9:23]
and unlawful possession of a firearm in contravention of section 4 of
the Firearms Act, [Chapter
10:09].
After
a protracted trial, he was convicted on both counts.
In
respect of the attempted murder charge he was sentenced to four
years' imprisonment of which one year was suspended for five years
on the usual conditions of good behaviour. In respect of the firearms
charge, he was sentenced to 12 months' imprisonment of which five
months or were suspended for five years on the usual conditions of
good behaviour. The firearm was forfeited to the State. He now
appeals against both conviction and sentence in respect of both
counts.
Of
the several grounds of appeal raised in the notice and grounds of
appeal by the appellant, a reading of the heads of argument reveals
that only two grounds are relied upon on appeal. These grounds may be
summarised as follows.
In
respect of the first count of attempted murder the appellant contends
that the court a
quo
erred in relying on the ballistic evidence tendered by Detective
Assistant Inspector Dube to convict.
In
respect of the second count, the contention is that the court a
quo
erred in admitting into evidence an extract of the police diary or
notebook made by Detective Inspector Jachi as it was inadmissible.
It
is critically important to set out the evidence upon which the
criticism on appeal is based and assess the impact of the evidence on
the nature of the case against the appellant.
The
court a
quo
heard evidence from seven witnesses called by the State. Only the
complainant in the attempted murder charge was a non-police witness.
The rest were. I will discuss the evidence of Detective Assistant
Inspector Dube and its probative value vis-a-viz
the
appellant's conviction on the first count of attempted murder.
The
appellant was convicted for attempted murder on the basis that the
expert evidence from the ballistic examination identified the weapon
recovered from the appellant's residence as the one that was fired
at the complainant in the attempted murder charge. In respect of this
count the following facts were largely not in dispute.
On
29 February 2012 the complainant was trailed by two motor vehicles as
he drove home from town. The one vehicle gave up the pursuit before
complainant went out of town. The other pursued him out of town. When
he got to a certain spot, the complainant decided to pull off the
road and see whether his pursuers would drive past. They did not.
They pulled up alongside his vehicle and opened the off-side doors.
Complainant saw the barrel of a gun and decided to speed off. He was
shot at, with one bullet head lodging in the boot of his motor
vehicle. He later discovered another lodged in a loaf of bread. After
the assailants drove back into town, the complainant drove to the
nearest police station. He took two police officers to the scene of
the shooting that same night. The police officers recovered three
spent cartridges from the tarred road at the scene of the shooting
and one bullet head from the complainant's motor vehicle boot.
These were taken to Marlborough Police Station. The investigating
officer, Detective Inspector Brian Maigeta conveyed these items to
Assistant Inspector Innocent Dube (“Dube”) of the Police
Ballistics Laboratory for examination and further processing on 6
March 2012.Dube produced a report on 12 March 2012 in which he stated
the following:
“REPORT
On
the 6th
of March 2012 the following were received per hand of number 056826 R
Detective Sergeant Maigeta:
(a)
3 x 9 x19mm fired cartridge cases.
(b)
1 x bullet head.
Examination
of exhibit (a) showed that they are 9 x19mm fired cartridge cases
which were discharged from the same weapon that chambers 9 x19mm live
ammunition.
Examination
of exhibit (b) showed that it is a 9mm bullet head which was
discharged from a weapon the chambers 9mm live ammunition.
Exhibits
(a) and (b) did not match any outstanding scenes in the laboratory.”
On
23 May 2012 Dube produced another report in the same format to the
following effect. He had received from Detective Sergeant Nhokwara
(“Nhokwara”) a 9mm CZ pistol serial number 20799/ BSAP 423 and a
.38 Special Taurus revolver without a serial number as it had been
erased. The two firearms were functional. He wrote;
“Examination
of the chambers and barrels of exhibits (a) and (b) showed some
deposits of gunshot residue an indication that weapons (a) and (b)
were fired but cannot ascertain when they were fire.
Test
cases from exhibit (a) matched exhibits (a) and (b) in FB65/2012,
(CID HOMICIDE HARARE, MARLBOROUGH CR 12/3/2012, ATTEMPTED MURDER,
CORNER ALENDALE ROAD AND KATHLEEEN CHRISTON BANK ON 29/02/2012).
Test
cases fired from exhibit (b) did not match any outstanding scenes in
the laboratory. Weapons (a) and (b) were manufactured after 1900.”
On
18 May 2012 a team of detectives led by Detective Inspector Alexander
Jachi of the Criminal Investigating Department's Vehicle Theft
Squad, investigating some other offences received a report concerning
the appellant and others. That report gave them reasonable cause to
believe that they might be able to recover firearms from the
appellant. Acting on this piece of information the team proceeded to
Dema. They found the appellant at his uncle's homestead and placed
him under arrest. They asked him to take him to his residence which
was a single flat-roofed room some 200m away. In the presence of his
uncle, a search of the appellant's room yielded a CZ pistol from
between the mattress and base-bed.
There
is dispute as to whether the appellant and his uncle voluntarily
signed an acknowledgement of the recovery of the fire-arm. This is
the pistol handed to Dube on 21 May 2012 by Nhokwara. This
information was relayed to Detective Sergeant Maigeta (“Maigeta”)
who is the investigating officer for the Christon Bank attempted
murder report. Appellant and his co-accused were then charged for
attempted murder and unlawful possession of fire-arms.
The
defence attacked the ballistics reports as so lacking in detail that
it could not possibly be the basis for the conclusions made by Dube.
In
court Dube suggested that the weapon recovered at appellant's Dema
residence was the same weapon which was fired during the commission
of the attempted murder charge. Despite the heavy criticism of the
lack of detail in the report by the defence, the learned trial
magistrate went on to accept the report by Dube as sufficient
evidence to link the appellant to the attempted murder of the
complainant.
The
trial magistrate also pointed to the fact that the appellant was
known to his erstwhile co-accused as another factor which
strengthened the case against the appellant since, according to the
court a
quo,
that other co-accused was linked to the break-in in Bulawayo in which
the pistol was stolen.
He
accepted that there was no eye witness to the shooting which placed
the appellant at the scene but still held it proper to convict the
appellant. He reasoned that because the pistol found inside
appellant's residence was found to have been fired, therefore it
was the appellant who fired it. He convicted the appellant of illegal
possession of the fire-arm too.
Mr
Nyeperai,
for the appellant, persisted with his argument that there was no
sufficient evidence that the CZ pistol was the same pistol fired in
the attempted murder incident at Christon Bank. It was incumbent on
the expert witness to have recorded the similarities which he
testified to in court as the basis of the opinion which he expressed
in court that the pistol recovered from the appellant is the same one
fired on the complainant. Because he did not, the opinion he
expressed ought not to have been accepted by the court below.
The
Constitutional Court of South Africa expressed itself on the subject
of expert witnesses in Glenister
v
President of the Republic of South Africa and Others (CCT
28/13) (2013) ZACC 20; 2013 (11) BLCR 1246 (CC) (14 June 2013)
(accessed on 9 February 2015);
“In
essence, the function of an expert is to assist the court to reach a
conclusion on a matter on which the court itself does not have the
necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy the court that,
because of his special skill, training or experience, the reasons for
the opinions he expresses are acceptable. Any expert opinion which is
expressed on an issue which the court can decide without receiving
expert opinion is in principle inadmissible because of its
irrelevance. The rule was crisply stated in
Gentiruco
A.G. v Firestone S.A. (Pty.) Ltd.1972
(1) SA 589 (A) at 616H:
'[T]he true and practical test of the admissibility of the opinion
of a skilled witness is whether or not the Court can receive
“appreciable help” from that witness on the particular issue'.
Expert
witness testimony on an ultimate issue will more readily tend to be
relevant when the subject is one upon which the court is usually
quite incapable of forming an unassisted conclusion. On the other
hand the opinion of the witness is excluded not because of a need to
preserve or protect the fact-finding duty of the court, but because
the evidence makes no probative contribution.”
Expert
testimony, like all other evidence, must be given only appropriate
weight. It must be as influential in the overall decision-making
process as it deserves: no more, no less. The weight to be given to
expert evidence will derive from how that evidence is assessed in the
context of all other evidence. This is because, while expert evidence
is important evidence, it is nevertheless merely part of the evidence
which a court has to take into account. Two critical matters spring
to mind as a consequence.
Firstly,
expert evidence does not “trump all other evidence”. Woodhouse
v
Britannic Assurance p.l.c., Employment Appeal Tribunal,
U.K.E.A.T. 0132/03/RN para. 25.
Expert
evidence should be tested against known facts, as it is the primary
factual evidence which is of the greatest importance. It is therefore
necessary to ensure that expert evidence is not elevated into a fixed
framework or formula, against which actions are then to be rigidly
judged with a mathematical precision. Stewart
v
Glaze
(2009)
E.W.H.C. 704.
In
HKSAR
v
Chan Sze Pui, Gloria (2004)
H.K.C.U. 298 it was held that a court is not compelled to accept the
evidence of an expert but is entitled to accept or reject that
evidence like any other, bearing in mind the whole of the evidence in
the case. The court had placed the expert testimony in the context of
the whole of the evidence and determined what weight could be placed
upon it.
Secondly,
a court must not consider expert evidence in a vacuum. It should not
therefore be artificially separated from the rest of the evidence. To
do so is a structural failing. A court's findings will often derive
from an interaction of its views on the factual and the expert
evidence taken together. The more persuasive elements of the factual
evidence will assist the court in forming its views on the expert
testimony and vice versa.
Similarly,
the South African courts have said that expert testimony can serve as
a useful tool or guide against which the reliability of the testimony
of eyewitnesses can be checked and tested. Van
der Westhuizen and Another v
SA Liberal Insurance Co. Ltd
1949 (3) S.A. 160 (C). It is for the court to determine, on the
balance of probability, on all the evidence, where the probabilities
lie.
In
Routestone
Ltd
v Minories
Finance Ltd and Another (1997)
B.C.C. 180, JACOB J observed that what really mattered in most cases
was the reasons given for an expert's opinion, noting that a
well-constructed expert report containing opinion evidence sets out
both the opinion and the reasons for it. The judge pithily commented
“(if) the reasons stand up the opinion does, if not, not” (at p
188). A court should not therefore allow an expert merely to present
their conclusion without also presenting the analytical process by
which they reached that conclusion.
In
R
v
Nyamayaro
1967 (4) SA 263 (RA) BEADLE CJ adopted the well-known dicta of
GREENBERG JA in Annama
v
Chetty
and Others
1947 AD 142 @ p 155 where the learned Judge of Appeal said, in
speaking of the evidence of a handwriting expert:
“His
function is to point out similarities or differences in two or more
specimens of handwriting and the court is not entitled to accept his
opinion that these similarities or differences exist, but once it has
seen for itself the factors to which the expert draws attention, it
may accept his opinion in regard to the significance of these
factors.”
(See
also S
v
Sibanda
1963 (4) SA 182 (SR))
The
fact of the matter in the present case is that the expert witness
Dube did not compile his report in a manner which would permit a
court to understand and follow the reasoning behind his conclusions.
He sought to excuse the scanty nature of his report by stating that
although it was desirable to include the detail which would allow the
court to follow his reasoning, this was not a legal requirement for
the sufficiency of his report. In maintaining this stance, he failed
to play his role as an expert.
Dube
ought to have demonstrated those grooves, if such were present, their
similarities in their location on both sets and so on, in order to
enable the trial court to make its own conclusion as to the probative
value of his expressed opinion regarding the issue to be decided. It
is clear his testimony, in its present form could not possibly have
helped the court to decide the question it was faced with. I am
persuaded by the argument so clearly laid down in the case law, in
this and other jurisdictions, that there has to be such evidence laid
before the trier of fact as sufficient for him or her to make up his
own mind as to the correctness of any proposition which the expert
makes in his testimony.
Clearly
there is nothing, besides Dube's say so, to enable the court a
quo
to have arrived at the conclusion that the bullet which was fired at
the complainant in the Christon Bank incident was discharged by the
pistol recovered from the appellant. As such one cannot state with
certainty that this was indeed the case, as the prosecution argued.
Without this detail, the trial court was not entitled to find, as it
did, that the expert's evidence was admissible. It was not. His
opinion was not backed by evidence. It remained that; an opinion; and
was therefore irrelevant to the issue to be decided. Without the
ballistic expert's evidence, there is no evidence linking the
appellant to the shooting at Christon Bank.
There
is another basis for coming to the same conclusion.
Even
assuming that the ballistic report, as amplified by the oral
testimony by Dube, was strong enough to place the CZ pistol at
Christon Bank on 29 February 2012, the evidence on the record shows
beyond doubt how fluid the movement of this particular pistol was. It
was allegedly stolen in Bulawayo during a break-in at a police
officer's residence. One Gerald Mugabe and the appellant's
co-accused are said to have at some point dealt with it. Who then
fired it on 29 February 2012? Could it be that a similar pistol was
fired by someone on that day?
It
is in my view quite probable that a similar pistol out there may have
been fired.
This
is why the ballistic report ought to have been detailed as to exclude
this possibility. It has not been excluded. There is no date given
for this break-in, nor when the officer, from who it was stolen, gave
his report. This was extremely crucial and critical as the record
states that this type of pistol is a standard police issue fire-arm.
The possibility of a similar one having been fired by someone else
was not, in my view eliminated. On that basis, it was unsafe to
convict on the charge of attempted murder, without further evidence.
In
any event, the appellant was not identified as having been present
when complainant was shot at. As such, it is difficult to find any
basis for a sound conviction on a charge of attempted murder.
In
the result he ought to have been acquitted on this count.
As
for the second count I am not persuaded by the argument put forward
by the appellant. In short the argument is that he was convicted on
the basis of inadmissible evidence. I disagree.
The
evidence show that the police detectives upon arresting the appellant
decided to conduct a search of his premises. He indicated the house
which was subject of the search. They had no search warrant but in
terms of section 51(1) of the Criminal Procedure and Evidence Act,
[Chapter
9:07]
the police details were entitled to conduct the search. That section
states:
“51
Search and seizure without warrant
(1)
A police officer may, without warrant, search any person or container
or premises for the purposes of seizing any article referred to in
section forty-nine
and
additionally, or alternatively, seize any such article —
(a)
if the person concerned consents to the search for and additionally,
or alternatively, the seizure of the article in question or if a
person who may consent to the search of the container or premises
consents to such search and additionally, or alternatively, the
seizure of the article in question; or
(b)
if he on reasonable grounds believes that —
(i)
a warrant would be issued to him in terms of paragraph (a)
of subsection (1) of section fifty
if
he applied for one; and
(ii)
the delay in obtaining a warrant would prevent the seizure or defeat
the object of the search, as the case may be.”
(See
also section 54)
The
appellant contends that the police had not properly warned and
cautioned him before they asked him to sign the diary in which a
“mute confession” in the form of an acknowledgement of the fact
of the recovery of the pistol was made. If I understand this
argument, the appellant contests the admissibility of the diary entry
by D/S Jachi which the court a
quo
ruled admissible. Even if it were conceded that the procedure
required to admit this type of evidence was not strictly followed, I
come to the conclusion that the fact of recovery of the pistol is
still saved by section 258 (2) of the Act. It provides:
“258
Admissibility of facts discovered by means of inadmissible confession
(1)
It shall be lawful to admit evidence of any fact otherwise admissible
in evidence, notwithstanding that such fact has been discovered and
come to the knowledge of the witness who gives evidence respecting it
only in consequence of information given by the person under trial in
any confession or statement which by law is not admissible in
evidence against him on such trial, and notwithstanding that the fact
has been discovered and come to the knowledge of the witness against
the wish or will of the accused.
(2)
It shall be lawful to admit evidence that anything was pointed out by
the person under trial or that any factor thing was discovered in
consequence of information given by such person notwithstanding that
such pointing out or information forms part of a confession or
statement which by law is not admissible against him on such trial.”
The
appellant pointed out his residence. A search without warrant
followed on the basis that the police had reason to believe that they
would recover fire-arms. (Section 258(2)). The search was conducted
in his presence. That search yielded a CZ pistol.
The
magistrate correctly rejected the claims that police planted the
fire-arm which was recovered. The appellant's witnesses who
testified the circumstances surrounding the search at appellant's
residence were correctly ruled unreliable by that court. The fact
that the fire-arm was recovered from the appellant's house is, in
my view by accounts admissible. Reliance can be placed on the
statutory provisions set out above. The irregularity posed by the
admission of the police diary cannot, in my view be said to be so
gross as to vitiate the conviction. With or without that piece of
evidence, the fact is the pistol was found in appellant's
possession. He was in my view, properly convicted.
In
the premises the appeal against conviction in the second count fails.
As
for sentence passed in respect of that count, I find no basis to
disturb it as it is eminently fair in all the circumstances of this
case. I therefore make the following order:
1.
The appeal against conviction for attempted murder succeeds. The
conviction in the court a
quo
is set aside and the sentence passed in respect of that count is
quashed.
2.
The accused is found not guilty and is acquitted in count 1.
3.
The appeal against conviction and sentence in count 2 is dismissed.
BERE
J has authorised me to say that he agrees with this judgment
Costa
&Madzonga,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
