Criminal
Appeal
MOYO
J:
The
appellant in this matter was convicted of fraud as defined in section
136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
by the Provincial Magistrate sitting in Bulawayo.
He
was sentenced to 48 months imprisonment with 12 months imprisonment
suspended on the usual conditions.
Dissatisfied
with both conviction and sentence he then approached this court.
At
the hearing of the appeal we dismissed the appeal against conviction
and allowed the appeal against sentence with reasons to follow. Here
are they:
In
the notice of appeal which I will not reproduce herein the appellant
is not satisfied with the manner with which the court a quo treated
the evidence of the witnesses.
The
appellant avers that the evidence of Absolom Hlupho was inadmissible
as against the appellant as it was accomplice evidence. That the
court a quo erred in finding that the warrant of liberation was fake
and that the court a quo erred in finding that the cellphone call
history was admissible. Also that the learned magistrate erred in
accepting Lilian Tapera's evidence and in finding that it had been
adequately corroborated.
On
the sentence, the appellant is of the view that the sentence imposed
by the learned magistrate is unduly harsh and excessive.
The
facts of this matter in a nutshell are that the appellant, a legal
practitioner by profession, with the assistance of Absolom Hlupho a
prison officer, sought to cause the release of a convicted and
serving prisoner through a misrepresentation that the prisoner had
been granted bail pending an appeal and a warrant had thus been
issued for his liberation.
The
State case hinged on the evidence of Lilian Tapera, the sister to the
serving prisoner whose release it is alleged appellant sought to
clandestinely secure.
She
gave the court a detailed account of what transpired and how she paid
the appellant $1,500 for his services.
The
court rightfully found her as a credible witness in our view for
there are no pointers to lack of credibility in her evidence.
As
for Absolom Hlupo's evidence, this court does not find any issues
with it.
Absolom
Hlupo expressly told the court that he realized that lies would not
take him anywhere and he decided midway through his cross examination
to tell the court the truth. He confirmed that the warrant of
liberation came from appellant.
The
findings of the trial court with regard to these witnesses'
testimony cannot be faulted.
On
the authenticity or otherwise of the warrant of liberation the
evidence of Lungile Moyo and that of Freedom Potera the clerk of the
Regional Court amply covered that point to the satisfaction of the
court.
On
the constitutionality or otherwise of the cellphone history which
appellant decided not to respond to on the merits, we find that there
is absolutely no basis for the challenge being proffered for, the
right to privacy enshrined in the Constitution is not absolute.
As
correctly held in the case of Tendai Biti v Chief Superintendent
Majuta HH156/11 BHUNU J held that where the police have reasonable
cause to investigate crime the subject's rights to privacy must of
necessity give way to common good and public interest to fight crime.
There
is therefore absolutely nothing wrong with the production and the
acceptance of the cellphone history by the trial court.
Lilian
Tapera could not be held to be an accomplice when in fact she told
the court that she genuinely believed in the whole process that the
appellant engaged in and she actually thought there was nothing
amiss. On page 47 of the record she actually told the court that as
she waited for the processing of his brother's release papers at
Khami, the appellant phoned her and advised her to quickly leave the
place (Khami prison), that she should run away.
She
said she decided to wait there.
Surely
if she had been part of the clandestine plan to release her brother
she could have fled at that juncture. Her decision to wait shows that
she did not appreciate that there was a serious problem with the
whole plan.
In
the case of Chimbwanda v Chimbwanda SC28/02 it was held by ZIYAMBI JA
as follows:
“It
is trite law that an Appellate Court will not interfere with the
findings of fact made by a trial court and which are based on the
credibility of witnesses. The reason for this is that the trial court
is in a better position to assess the witnesses from its vantage
point of having seen and heard them.----.
The
exception to this rule is where there has been a misdirection or a
mistake of fact or where the basis upon which the court a quo reached
its decision was wrong.”
We
have found no misdirection in the manner with which the trial court
dealt with the evidence before it.
We
have already canvassed the evidential issues herein.
We
found that in fact the evidence against the appellant was
overwhelming and that the court a quo rightly convicted him.
On
sentence, we noted that, Accused 1 (the appellant's co-accused) was
sentenced to 36 months imprisonment with 12 months imprisonment
suspended on the usual conditions.
The
appellant himself was sentenced to 48 months imprisonment with 12
months imprisonment suspended on the usual conditions.
We
then considered the reasons for sentence and noted that the appellant
is also a young lawyer who was at the inception of his career, we
then held the view that he should have been given a sentence that
considers his immaturity as a lawyer.
It
is for that reason that we interfered with the sentence.
We
thus made the following order:
(a)
The conviction is confirmed.
(b)
The sentence by trial court is set aside and substituted with the
following:
The
accused person is sentenced to 36 months imprisonment of which 12
months imprisonment is suspended for 5 years on condition the accused
person does not within that period commit an offence involving
dishonesty for which upon conviction he shall be sentenced to
imprisonment without the option of a fine.
Moyo
and Nyoni appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
MAKONESE
J……………
