Criminal Appeal
BERE
J:
The
appellant was convicted for contravening section 114 of the Criminal
Law [Codification and Reform) Act [Cap
9:23],
on 14 February 2013, and sentenced to the minimum mandatory sentence
of 9 years after the learned presiding Magistrate found no special
circumstances to warrant a lesser sentence.
This
appeal is against both conviction and sentence.
In
his notice of appeal the appellant has laid basically three grounds
of appeal, viz,
that the learned Magistrate failed to appreciate the existence of the
defence of mistake or ignorance of 'facts', whatever was
intended.
The
second ground of appeal is given as that the learned Magistrate
misdirected himself when he convicted the accused person when such
conviction was not supported by evidence.
Finally,
it was contended that the court a
quo
misdirected itself by failing to give reasons for the conviction of
the appellant.
As
regards sentence the point taken is that the learned Magistrate
grossly misdirected himself in that he failed to adequately and
properly explain the issue of special circumstances before the
appellant was sentenced.
The
learned magistrate was also attacked on his sentence for allegedly
paying lip service to the appellant's issues in mitigation and in
particular in failing to properly explain the issue of special
circumstances before sentence.
The
respondent's position is that the conviction cannot be faulted and
that it need not be interfered with.
It
is on sentence that the respondent felt constrained to support it.
Counsel for the respondent felt that there was merit in the argument
that no special circumstances were explained to the appellant. The
respondent suggested that this court considers the remittal of the
case back to the court a
quo
for purposes of having the issue of special circumstances further
canvassed.
It
might well be true that at the time the appellant's counsel perused
the court record the written reasons were not there but I find it
inconceivable that the appellant's counsel would have come to the
conclusion that when the Magistrate convicted the appellant he just
did that with no reasons at all.
In
any event the proper procedure to have adopted if indeed there were
no reasons for judgement would have been for the appellants counsel
to file an application for review for such a procedural irregularity.
An appeal could only have been an attack on the reasons for
judgement, which incidentally the appellant's counsel did which
presupposes that there must have been reasons somewhere which led to
the framing of the grounds of appeal.
The
irony is that the reasons for judgement given by the learned
Magistrate properly fit into the evidence that was led at trial
making it highly improbable for one to imagine that those reasons
were manufactured or created after the conviction of the appellant.
The
judgement as crafted by the learned Magistrate clearly shows that the
appellant crucified himself by projecting himself as the owner of the
complainant's beast to whoever he interacted with.
According
to the evidence of Evson Chakamba, it was the appellant who
personally approached him to hire his motor vehicle to ferry the
beast forming the subject matter of these proceedings.
The
appellant disclosed to the witness that he wanted to sell the beast
to T.M Supermarket but somehow the slaughtered animal ended up being
taken to Dzonzai Butchery. No meaningful challenge was given to the
evidence of this witness, meaning the appellant was substantially in
agreement with the evidence of this witness.
The
evidence of Blessing Chakamba corroborated that of his father Evson
Chakamba in all material respects in further cementing the guilt of
the appellant.
The
young man's uncontroverted evidence was that the appellant claimed
ownership of the beats which was subsequently slaughtered at the
abattoir before the carcass was taken to Dzonzai Butchery in
Chipinge. The witness confirmed that throughout, the appellant was
firmly in charge of the beast.
The
witness further disclosed to the presiding Magistrate that throughout
his interaction with the appellant, the appellant disclosed that the
beast was his. Not only that but that the appellant personally
exhibited fake clearance papers for the animal.
The
learned Magistrate made a very careful analysis of the evidence that
was presented including the rejection of the evidence by the
appellant where he attempted to paint the picture that the animal
belonged to his accomplice.
In
my view the learned Magistrate's finding on the guilt of the
appellant was beyond reproach. It cannot be faulted and need not be
interfered with by this court.
The
guilt of the appellant did not even need one to invoke the provisions
of sections 205 and 206 of the Criminal Law (Codification and Reform)
Act [Chapterv
9:23].
This is so because all indications are that the attempted disowning
of the beasts which only assumed prominence during the defence case
must have been an after-thought. This explains why this was not
suggested to witnesses who actually dealt directly with the
appellant. If indeed the beast belonged to his brother as he stated
in his defence outline, he would have disclosed this to all the
witnesses he dealt with.
On
sentence, the respondent has conceded that the issue of special
circumstances was not properly explained to the appellant hence the
court should be at large in respect of the sentence imposed by the
court a
quo.
The
court a
quo was
attacked for failing to adequately and properly explain the issue of
special circumstances to the appellant before slapping him with the
mandatory 9 year gaol sentence.
Counsel
for the appellant's criticism of the court a
quo in
this regard was informal by the inscription by the learned magistrate
that;
“Special
circumstances peculiar to the case explained and understood.”
It
was argued by Mr Gonese
for
the appellant that the explanation inscribed in the record of
proceedings was evidently inadequate and the learned magistrate ought
to have given a more elaborate and meaningful explanation.
I
agree.
It
is imperative in my view that where there is need to deal with the
issue of special circumstances, the actual explanation given by the
magistrate be recorded to avoid the appeal court having to speculate
on what was explained to the appellant before sentencing. This is
particularly so where the issue is raised on appeal. The proper
approach should be for the magistrate to explain what special
circumstances are and also the consequences of a failure by the
convicted person to give such special circumstances. Both the
explanation given by the magistrate and the responses given by the
convicted person must be recorded.
This
same issue came up for consideration in the Supreme Court of this
country in the case of
S
v Chaeruka
where McNally JA with the concurrence of others made the following
remarks;
“I
am satisfied that in the circumstances of this case the magistrate
should have gone much further than he did in advising the appellant
why the case had been remitted, what the minimum penalty was, and how
that penalty could only be avoided by proof of special circumstances.
He should have gone on to explain what special circumstances were
…..”
The
following cases are also of relevance on the issue of special
circumstances;
Tracking
and Construction (Pvt) (Ltd) and Anor
v S,
Telecel
Zimbabwe
v The
State
and
S
v
Dube
and Another.
The
State has made a concession that there is merit in the appeal against
sentence and I am more than satisfied that that concession was well
made.
Accordingly,
the conviction is confirmed but the sentence is set aside and the
matter is remitted for a proper hearing on the question of special
circumstances, after which the magistrate will impose sentence
afresh.
HUNGWE
J agrees ……………………
Gonese,
Majome & Company,
appellant's legal practitioners
Attorney
General's Office,
respondent's legal practitioners
1.
Page 13 of the record of proceedings
2.
1998 (2) ZLR 226 (S)
3.
HH 195-86
4.
HH 155-06
5.
1988 (2) 385 (SC)
