CHAMBER
APPLICATION
MAKONI
JA:
This
is an opposed application for leave to appeal made in terms of s44 of
the High Court Act [Chapter
7:06]
as read with r20(1) of the Supreme Court Rules, 2018.
The
applicant was convicted of rape and sentenced to an effective 10
years imprisonment by the Harare Regional Court on 11 July 2016.
His
appeal against conviction and sentence was dismissed by the High
Court on 29 May 2019.
He
sought leave to appeal to this Court, against the dismissal of his
appeal, before the High court which leave was declined on 10 December
2020 hence the present application.
FACTUAL
BACKGROUND
The
applicant was arraigned before the magistrates' court charged with
one count of indecent assault and one count of rape.
The
offences were allegedly perpetrated on two
minor children who
were his nieces. He was acquitted in respect of the first count of
indecent assault.
The
second count of rape is alleged to have occurred on 22 August 2010,
at 11 Tavey Road, Vainona.
The
complainant and her sister (the complainant in count one) had visited
their aunt Patience Muswapadare (Patience) who is a wife to the
applicant. The complainant's evidence was that on the day in
question, at around 3am, Patience woke her up and asked her to tend
to her (Patience's) baby. This was because Patience wanted to
prepare some food for the applicant.
After
she lulled the baby to sleep she sat on a couch in the bedroom.
The
applicant, whom she had met in the lounge, came up to her on the
couch. He fondled her breasts and vagina, produced his pistol and
raped her. He only stopped after hearing some footsteps.
The
complainant managed to break free and went to her bedroom.
She
did not feel comfortable to report to Patience. She reported the
ordeal to her sister the following day on 23 August 2010.
The
sister had spent the night at an all-night prayer. She forbade her
from telling anyone because she was not comfortable sharing the
experience with other people.
Eventually,
on 30 October 2010, the complainant voluntarily confided in her
maternal uncle's wife, Sally Ndanatsei Maramwidze, about the rape.
Thereafter other relatives were informed.
On
the same day the matter was reported to the police at Highlands
Police Station.
The
complainant was medically examined at Parirenyatwa hospital on 1
November 2010. The report indicated that the hymen was broken.
Apart
from the complainants, the state led evidence from Sally Ndanatsei
Maramwidze (to whom the report of the rape was made), Francis Maxwell
Maramwidze (maternal grandfather and legal guardian of the
complainants to whom the allegations were later reported and who
approached the police), Edwin Tafadzwa Chanakira (the doctor who
examined the complainant and found that her hymen had been broken
which was indicative of sexual penetration), Mirirai Chiremba (the
Director of Financial Intelligence at the Reserve Bank of Zimbabwe to
whom the applicant gave his pistol, magazine and cleaning kit on 22
August 2010 to return to RBZ Security Department and requested that
an earlier date of return be entered), Grasham Muradzikwa (the
Director of Security at the Reserve Bank of Zimbabwe who refused to
take the applicant's firearm from Mirirai or backdate it to a
particular date) and Monica Kativhu (the police officer at Borrowdale
Police Station who recorded statements from the complainants).
The
defence's case was led by the applicant who raised the defence of
an alibi.
He
said that he was at his Mandara house with his brother Cletos Kereke
at the time the alleged offence was committed. He had witnesses to
support his testimony.
He
also denied influencing the backdating of the return of his firearm.
He claimed that he had surrendered it on 14 June 2010, way before the
allegations against him were levelled.
The
applicant claimed that the complainant's grandparents were trying
to extort him for his refusal to pay the complainants' school fees.
Gideon Gono and his counterparts wanted to silence him against
revealing their fraudulent activities and also that there were
political machinations against him by Webster Shamu and others.
The
second defence witness Patience Muswapadare Taruvinga, wife to the
applicant, testified that complainant's testimony was untruthful.
The
third witness, Alphios Njodzi Chinhano, pointed to friction between
the applicant and Francis Mwaramwidze because of political ambition.
Next
to testify was Cletos Kereke, who corroborated the applicant's
testimony that at the alleged time of the offence, he and the
applicant were in Mandara.
Taurai
Bwanalisa and Norest Ndoro testified that they were security guards
on duty at the Mandara house. They recorded the applicant's visit
on 20 August 2010 but disputed the authenticity of the extract
produced from the occurrence book in court.
Anna
Muswapadare, mother in law to the applicant and a stepmother to the
complainants' father, attested that she shared the bedroom with the
complainant during the material time and that she could not have been
raped.
Dr
Chiratidzo
Lorraine Jeyacheya, a medical doctor and head of the Casualty and
Emergency department was called at the court's instance and
confirmed that Dr Chanakira
was on duty at the time of the examination.
The
applicant had disputed that Dr Chanakira was on duty on the date the
complainant was examined.
After
an analysis of the evidence before it, the trial court convicted the
applicant of rape.
The
court found that it had been proven beyond reasonable doubt that the
applicant raped the complainant.
The
court reasoned that the complainant's report was voluntary, she
gave a reasonable explanation as to why she did not report the case
in time and that she was able to give a clear account of the
circumstances of the alleged rape.
It
further found that her testimony was corroborated by Sally Ndanatsei
Mwaramwidze and Francis Mwaramwidze.
The
court found insignificant the discrepancy in her narration in the
applicant's use of a gun.
It
found that Chanakira who examined the complainant was indeed on duty
on 1 November 2010.
It
also found that the applicant still had the gun in his possession on
22 August 2010.
The
court concluded that the allegations were not as a result of
fabrications by the Mwaramwidze family or political machinations. It
found that the applicant had lied concerning his possession of the
gun, backdating its return, coaching of the witnesses and an
unconvincing explanation that he was with Cletos in Mandara.
In
sentencing the applicant the court took into account the mitigating
and aggravating circumstances and sentenced him to an effective 10
years imprisonment.
The
applicant noted an appeal to the court a
quo
against his conviction and sentence which was dismissed in its
entirety.
The
court found that the trial court properly assessed the evidence and
correctly found that the applicant's guilt had been proven beyond
reasonable doubt.
It
found that the trial court properly assessed complainant's evidence
and found that her detailed account of the rape and her voluntary
report which was corroborated by Dr Chanakira's medical report met
the threshold of proof beyond reasonable doubt.
It
also discarded the applicant's defence of impossibility of the
actus
reus
whereby he contended that raping the complainant on a couch was
impossible, as invalid.
The
court a
quo
also found that the trial court properly disregarded the applicant's
testimony regarding the return of his pistol as his version was only
corroborated by a document which he had authored and forced Chiremba
to co-sign.
Further,
that there was an anomaly in the defence witnesses' evidence as
their statements, in affidavit form, were commissioned by one legal
practitioner and were given on the same date.
The
possibility of coaching in these circumstances could not be ruled
out.
As
regards sentence, the court found that the trial court properly
exercised its discretion in weighing aggravating and mitigating
circumstances and that the sentence imposed was within the range
imposed in similar cases.
The
court held that the decision of the Magistrates Court could not be
faulted.
It
was the court's view that the applicant as an adult and relative of
the minor child was expected to protect her and not abuse her.
Aggrieved
by the High court's dismissal of his appeal, the applicant sought
leave to appeal to this Court from the High Court.
The
court a
quo
found that the appeal did not have reasonable prospects of success.
The
factual disputes were thoroughly determined. It found that the trial
court properly dismissed the applicant's defence of alibi
after
rejecting the defence witnesses' testimonies on the basis that they
had been coached.
The
court reasoned that there was a remarkable coincidence in that their
affidavits, in which they exonerated the applicant, were commissioned
before the same legal practitioner under circumstances where they
claimed to have gone to the legal practitioner separately and all
were recorded on the same day.
The
court also held that the applicant's alibi
was choreographed as the guards at his Mandara house could not
corroborate the applicant's testimony as they disowned certified
extracts of an occurrence book produced in court. Further, that the
applicant would visit his Mandara house where none of his family were
staying. He visited with his brother who then becomes a defence
witness attesting to his alibi.
It
also found that the surrender of the pistol a few hours after the
rape was not mere coincidence.
As
regards the sentence, the court found that the sentence imposed was
amply justified and the trial court properly exercised its
discretion.
It
is against this background that the present application has been
made.
SUBMISSIONS
BY THE APPLICANT
Mr
Nyamakura
submitted that the applicant has reasonable prospects of success on
appeal as the court a
quo,
in dismissing his appeal, erred in failing to consider and place in
their proper context material misdirections that saddle the decision
of the trial magistrate. He raised four main areas of concern viz;
(i)
the impossibility of the actus
reus;
(ii)
the inconsistencies in the complainant's evidence;
(iii)
the rejection of his defence of an
alibi;
and
(iv)
the finding that defence witnesses were coached on what to say in
court.
On
the issue of the impossibility of the actus
reus,
Mr Nyamakura
submitted that it was physically impracticable that the applicant
could have raped the complainant in the manner alleged.
The
panty which the complainant claimed could stretch was not produced.
Her
reaction is not one objectively expected under such circumstances.
She
claims to have been raped at 3am after having been woken up by
Patience to tend to her baby.
Patience
testified that on the night in question she was not at home as she
was at Avenues Clinic where her baby was admitted.
No
proper reasons were given for rejecting her evidence.
There
was also evidence of Anna Muswapadare, who shared a bedroom with her
to the effect that the complainant was in bed and asleep at the
material time.
The
failure by the court a
quo
to consider, in its proper context, the impossibility of the facts
presented by the prosecution is material.
Instead
the court characterised the applicant's arguments on impossibility
as exhibiting male chauvinism and patriarchy.
Mr
Nyamakura
further argued that evidence led by the prosecution lacked
consistency in material respects to warrant reasonable doubt.
There
was no consistency on the issue of the gun, the time the offence was
committed and the reason why the complainant did not report the issue
to the trusted adults at the first available opportunity.
The
court a
quo
erred and misdirected itself in failing to, in totality, find that
the inconsistencies in the prosecution's version of events as well
as the improbability of the same cast significant doubt on the
truthfulness of the complainant's allegations.
Further, Counsel contended that the court
failed to fully consider the applicant's defence of an alibi.
The
onus
remained on the prosecution to establish that the explanation was not
only improbable but that beyond any reasonable doubt it was false.
The
applicant asserted that he was not at his Vainona home at the time of
the alleged rape.
He
called witnesses and the consistent thread in all their testimonies
was that the applicant could not have committed the offence as he was
not at the scene of the offence.
Two
of the witnesses were security guards who were no longer in the
employ of the applicant at the time of the trial and had no motive to
lie.
Mr
Nyamakura
further submitted that the trial court proceeded from the premise
that the alibi
witnesses
who testified in respect to the applicants alibi
were
coached.
It
made such findings without direct evidence as to when, where and by
whom they were coached.
It
relied on inferences without applying the test to justify drawing
such an inferences.
There
was no evidence at all suggesting that the witnesses were coached.
Coaching is a positive act and the prosecution did not lead evidence
on the form, manner and timing of such coaching.
Mr
Nyamakura
attacked the court a
quo
for making a finding that the security guards had a motive to lie in
order to protect their boss.
The
finding was made in 2016 when both guards were no longer employed by
the applicant.
Mr
Nyamakura
further
submitted that the court a
quo
erred in accepting Mirirai Chiremba's evidence that he was made to
sign a memo, backdating the return of the gun, under duress by the
applicant when there was no documentation confirming the return of
the gun by the applicant on the date so alleged.
He
(Chiremba) failed to explain why he kept the gun in his office from
August 2010 until the trial of the accused in 2016 in circumstance
where the applicant had ceased to be his supervisor.
No
submissions were made in respect of leave to appeal against sentence.
I
will take it that the applicant has abandoned the issue.
SUBMISSIONS
BY THE FIRST RESPONDENT
Mr
Warara
submitted that the intended appeal does not have reasonable prospects
of success on appeal.
Regarding
the impossibility of the act of rape, Mr Warara
submitted that the complainant gave a cogent explanation of how the
rape was committed. Her evidence was not successfully challenged
under cross examination. There was also medical evidence to prove
penetration. Thus the averments relating to the absence of actus
reus
are misplaced.
He
further argued that the trial court satisfactorily related to the
alleged inconsistencies in the prosecution's case. He also
submitted that the trial court properly dealt with the issue of
credibility of witnesses and the threshold of proof beyond reasonable
doubt in a balanced manner.
Mr
Warara
further submitted that the court dealt with the issue of the
applicant's alibi
and
rejected it as the defence witnesses credibility failed during
cross-examination.
The
record is replete with proof beyond a reasonable doubt that the
applicant's alibi
was not true.
There
was the evidence of the security guards who disowned the entry in the
occurrence book. It recorded only the applicant's movements.
There
was the evidence of Chiremba who met with the applicant at Chisipite
Shopping Centre on the morning of the rape.
The
applicant failed to explain why he handed over the gun on a Sunday.
THE
LAW
The
factors which must be considered in an application of this nature
were discussed in the case of Chikurunhe
v Zimbabwe Financial Holdings
SC10-08
at p5 where the Court held that:
“The
party seeking leave must show inter alia that he has prospects of
success on appeal. In other words, leave is not granted simply
because a party has sought such leave.”
Therefore,
it is important to assess whether or not the appeal has good
prospects of success.
APPLICATION
OF THE LAW TO THE FACTS
The
applicant's grounds of appeal are an attack
on the factual findings of the trial court and its assessment of the
credibility of witnesses.
In
confirming the applicant's conviction, the court a
quo
found these findings to be rational.
The
questions of whether or not the applicant was at the Mandara
residence at the time of the offence, or whether the defence
witnesses were coached and whether the applicant used the gun in the
commission of the offence are enquiries of fact.
It
is trite that an appellate court is slow to interfere with the
factual findings of a lower tribunal.
The
circumstances under which this Court will interfere with the findings
a
quo
was clearly enunciated by this Court in RBZ
v Granger & Anor
SC47/09
as
follows:
“There
must be an allegation that there has been a misdirection on the facts
which is so unreasonable that no sensible person who had applied his
mind to the facts would have arrived at such a decision. A
misdirection of fact is either a failure to appreciate a fact at all,
or a finding of fact that is contrary to the evidence actually
presented.” (See also Zvokusekwa
v Bikita Rural District Council
SC34/15).
In
Zimre
Property Investments Ltd v Saintcor (Pvt) Ltd t/a vTrack & Anor
SC59-16 p11 para 36
it
was held that:
“The
position is now settled that an appellate court will not interfere
with the findings of fact made by a trial court unless the court
comes to the conclusion that the findings are so irrational that no
reasonable tribunal, faced with the same facts, would have arrived at
such a conclusion. Where there has been no such misdirection, the
appeal court will not interfere. This position was aptly captured by
this court in Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S). At 670, Korsah JA remarked:
'The
general rule of law as regards irrationality is that an appellate
court will not interfere with a decision of a trial court based
purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic that no
sensible person who had applied his mind to the question to be
decided could have arrived at such a conclusion….'”
It
is also an established principle that an appellate court is slow to
interfere with the findings of credibility of the witnesses by a
lower tribunal. This principle was well captured in the case of
Gumbura
v The State
SC78/14 at p7 where the Court remarked as follows:
“As
regards the credibility of witnesses, the general rule is that an
appellate court should ordinarily be loath to disturb findings which
depend on credibility. However, as was observed in Santam
BPK v Biddulph
(2004) 2 All SA 23 (SCA), a court of appeal will interfere where such
findings are plainly wrong. Thus, the advantages which a trial court
enjoys should not be overemphasised. Moreover, findings of
credibility must be considered in the light of proven facts and
probabilities.”
I
want to zero in on how the trial court dealt with the evidence of the
defence witnesses.
The
applicant raised the defence of an alibi.
He
led evidence from witnesses in support of his defence that he was not
at his Vainona home on the date and time when the alleged rape was
committed.
The
trial court in dealing with the evidence of defence witnesses stated
that the credibility of the witnesses in question was attacked by the
prosecution mainly on the ground that they had been coached by the
applicant on what to say.
The
other ground of attack on the credibility of Cletos Kereke, Anna
Muswapadare and Patience Muswapadare was that their statements were
all commissioned by the same legal practitioner on the same day.
It
is common cause that the statements of Cletos Kereke, Patience
Muswapadare, Anna Muswapadare, Vincent Muswapadare, were all sworn to
on 10 August 2010 and were commissioned by a legal practitioner by
the name Takudzwa
L. Takawira.
These
four witnesses stated that they were called to a police station in
Borrowdale on 10 November 2010 and the police interviewed them on
this matter. As they were giving their answers the police were typing
out and after that the police then gave them the statements to go and
have them commissioned by a commissioner of oath of their choice.
They
said that they did not meet each other at Borrowdale police station
neither did they meet at Takudzwa
L. Takawira
Chambers.
Each
of them independently went into town to have his or her statement
commissioned and by coincidence they all found themselves at Takudzwa
L. Takawira's
office
at different times.
The
trial magistrate found this amiss.
There
was no satisfactory explanation as to why the police would record
their statements in affidavit form and refer them for commissioning
elsewhere when they could have commissioned them as they did with the
applicant's affidavit.
He
further found that it could not be coincidence that all the witnesses
independently got into town and ended up at the offices of the same
legal practitioners for commissioning of their affidavits.
He
concluded by stating:
“The
above proves to me beyond any reasonable doubt that these witnesses
were lying as regards how their statements were recorded and
commissioned. There is no other reason for lying on these aspects
other than that their statements were pre-recorded before these
witnesses went to the police. Even accused's affidavit statement
was pre-recorded this is clear from the declaration by the officer
in charge who recorded the statement and I quote:
'I
certify that the above statement was made freely and voluntarily by
MUNYARADZI KEREKE who was in his sound and sober senses and tendered
his prepared affidavit statement through his legal practitioner
Tawanda Herbert Chitapi.'
The
question is why these witnesses would pre-record their statements
before they went to police and why they would lie about this fact to
the court.
There
is only one reasonable conclusion that someone influenced them on
what to write in the statements and they did not want the court to
know about the fact, only reasonable conclusion is that accused is
the one who influenced them.
I
draw the above inference because that is the only reasonable
inference which can be drawn from the proved facts which I have
stated above: see S
v Marange and others 1991 (1) ZLR 244 SC; R v Vhera 2003 (1) ZLR 668.
See
also Schwikkard at p530 also S v Vhera 2003 (1) ZLR 668.
I
therefore agree with the prosecution's submission that the
witnesses mentioned above were influenced on what to say.
The
court should therefore never put any reliance on influenced
witnesses.
It
is clear accused influenced them.
This
will also tend to support complainant's case that she is telling
the truth; see S
v Chigwada
S-206-88; S v Katerere-S-55-91.”
The
court a
quo
found that the trial court's finding that the applicant was not at
the Mandara residence on the day in question was unassailable. It
found that the trial court after a careful and detailed analysis of
the defence witnesses' evidence properly rejected the defence of
the alibi
as
false. The defence witnesses' testimony was properly rejected on
the basis of the anomaly that the statements were commissioned by one
lawyer on the same date. That was proof of coaching.
The
applicant's complaint is that the trial court rejected the alibi
witnesses'
evidence on the basis that they were coached when there was no direct
evidence of that. It relied on inferences without applying the laid
down test.
That
their evidence being in affidavit form and having been commissioned
by the same legal practitioner is evidence of coaching is so shocking
that no other court would arrive at the same decision, so it was
contended.
The
test for the proper use of circumstantial evidence was laid down in R
v Blom
1939 AD 188 at 202-203 (quoted with approval in Moyo
v The State
SC65/13) where it was stated:
“In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.”
A
court intending to rely on such evidence must ask itself a few
questions.
The
first one is what the proved facts are.
In
casu
if the trial court had asked itself the above question it might have
arrived at a different conclusion.
The
prosecution did not lead evidence to controvert the position stated
by the defence witnesses regarding the recording of their statements.
The issue arose during the cross-examination of the defence
witnesses. The prosecution had not laid a basis for putting in issue
what the defence witnesses said happened.
As
was correctly submitted by Mr
Nyamakura
coaching is a positive act.
Evidence
has to be led as to the form, manner and timing of such coaching.
In
casu
no such evidence was led.
It
appears the finding that the witnesses were coached was not based on
demeanour but on probabilities.
The
Supreme Court, in such a situation, will be in the same position as
the trial court regarding the drawing of the pertinent inferences.
The
point was made in Minister
of Safety and Security and Others v Craig & Others NO
2011 (1) SACR 469 (SCA) at para 58 where the following was stated:
“Although
courts of appeal are slow to disturb findings of credibility, they
generally have greater liberty to do so where a finding of fact does
not essentially depend on the personal impression made by a witness'
demeanour, but predominantly upon inferences and other facts, and
upon probabilities. In such a case a court of appeal, with the
benefit of the full record, may often be in a better position to draw
inferences,”
In
my view this is the situation that pertains in casu.
The
trial court rejected the evidence of the defence witnesses mainly on
the basis of inferences and probabilities and not on the basis of
their demeanour.
The
Supreme Court, with the benefit of the full record, may well be in a
better position to draw the suitable inferences.
The
test to be used in considering the plausibility of the defence of
alibi
was stated in R
v Hlongwane
1959 (3) SA 337 (AD) in that case, HOLMES AJA had this to say at
340H:
“The
legal position with regard to an alibi
is that there is no onus
on an accused to establish it, and if it might reasonably be true he
must be acquitted. R
v Biya
1952 (4) SA 514 (AD). But it is important to point out that in
applying this test, the
alibi
does not have to be considered in isolation.”
(emphasis added)
Further
on at 341A-B the court held:
“The
correct approach is to consider the alibi
in
the light of the totality of the evidence in the case, and the
Court's impressions of the witnesses. In Biya's
case supra
GREENBERG JA said at p521:
'…
if
on all the evidence there is a reasonable possibility that this alibi
evidence is true it means that there is the same possibility that he
has not committed the crime.'”
Applying
that test to the facts of the present case the question is whether
there is a reasonable possibility that the alibi
evidence
is true.
This
is an aspect where the applicant might have prospects of success.
However
whether or not the success of his argument on this specific aspect
will have the effect of upsetting his conviction is a matter that I
am inclined to leave for determination by the Supreme Court.
I
am loathe to pronounce on it as a single judge in chambers.
For
that reason alone
I am inclined to grant the applicant the relief that he seeks so that
the Supreme Court determines the impact, if any, of this particular
aspect of his argument, on the propriety of his conviction.
Accordingly
I make the following order:
1.
The applicant is granted leave to appeal against the decision of the
High Court under judgment HH374/19, to the Supreme Court.
2.
No order is made as to costs.
Lovemore
Madhuku Attorneys,
applicant's
legal practitioners
Warara
& Associates,
respondents' legal practitioners
