KUDYA J: At the
commencement of trial on 10 March 2010, two accused persons were charged with
the murder of the 51 year old Joseph Chikova who was brutally killed in the
course of a robbery on 10 July 2007 at 26 Davey Road Fern Valley Mutare. Both
accused persons pleaded not guilty. A trial within a trial was held to
determine the admissibility of certain statements that were attributable to the
first accused person. The result of that exercise was a finding that there was
a reasonable possibility that his statement was not made freely and voluntarily.
It was not admitted into evidence. At
the close of the State case, Mr Tsaurai,
for the second accused, applied for his discharge and acquittal in terms of s
198 (3) of the Criminal Procedure and Evidence Act [Cap 9:07]. Mrs Fero, for
the State, conceded that the evidence led by the State was insufficient to
place the second accused on his defence. He was accordingly found not guilty
and acquitted. The first accused was put
to his defence.
The
State called the oral evidence of four witnesses. These were Tennis Rino, Janet
Chapungu, Assistant Inspector Joseph Nekati and Sergeant Joseph Jengeta. In
terms of s 314 of the Criminal Procedure and Evidence Act, the evidence of two
priests, Fathers Sylvester Ibgo and Antony Amadi; and Braslus Antonio Matatu, were
admitted into evidence by consent. The State further produced by consent the
post mortem report, exhibit 1, which was compiled by Dr Ijaz on 11 July 2007.
It
was common cause that on 10 July 2007, under the cover of darkness, a group of
men descended on the Spiritan Catholic Centre at 26 Davey Road, Fern Valley,
Mutare. Braslus Antonio Matatu, a night watchman was on duty with the deceased.
At around 0130 hours, the two went to investigate the barking of their dogs at
the premises. He observed several men jumping into the premises. He fled but
four of them caught up with him, disarmed him and assaulted him all over his
body. They tied his hands, gagged his mouth with pieces of cloth, and
blindfolded him. Later he heard the
sound of a vehicle driving out of the premises. He managed to free himself and
others. He went to where his fellow guard lay. He observed that he had an injury
above his right eye and that he was dead.
Father
Anthony Amadi left his house at the premises to investigate the groaning that
was coming from the orchard. He was set upon by many people who demanded from
him car keys, cell phones and money. The intruders threatened to kill him
before they tied him up. They disposed him of the house keys he had. They
ransacked his house and looted various items. They loaded the stolen property
in the Center's Toyota Dyna and drove off. He was later rescued by his fellow
workers. He learned of the deceased's death from them. His colleague Father Sylvester Ibgo was in Harare on the morning of
the robbery. As he was driving to Mutare along the Harare Mutare road, he
observed the Center's Toyota Dyna with the keys in the ignition abandoned at
Chipembere some 60 kilometers from Mutare. He took custody of the keys. On 25
July 2007 he later identified some of the recovered property at the Criminal Investigation
Department offices in Mutare.
Dr
Ijaz performed a post mortem on the remains of the deceased. The deceased's hands
were tied behind his back while his legs were tied together. He observed a 2 cm
long and deep cut above his right eyelid and a 6cm long superficial injury on
the other. When he opened the skull he saw a small haematoma and a contusion on
the inner scalp of his occipital area. He concluded that death was caused by
the injury to the head secondary to assault.
The
viva voce testimony of Janet Chapungu
did not associate any of the two accused persons with the carton of cooking oil
and matemba that she received from her grandson Tendai Owen Chapungu and hid on
his advice until it was recovered by police detectives.
It
was Tennis Rino an informal trader who buys and sells various wares at a flea
market in Mutare who associated the first accused only with a cell phone that
formed part of the stolen loot. He alleged that on a date he could not recall
but in August 2007, the first accused came to his house at 297 NHB Sakubva
Mutare at 8 am. He was selling a Nokia 5110 cell phone for $2 million in local
currency. He negotiated the price down and after 15 to 20 minutes of haggling purchased
it for $1, 5 million. After a few days, the first accused came with the police.
He was in handcuffs. The witness confirmed to the police that the first accused
had sold the cell phone to him. In his
evidence in chief he stated that he did not know the first accused's name and
could not recall it though he had seen it written down in some police document.
He was adamant that the first accused was the one who sold the cell phone to
him because he had directed the police to his residence.
Under
cross examination by Mr Mudheredhe,
for the first accused, the witness indicated that prior to the transaction he
did not know the first accused. He also denied knowing one Angirai Soundo. He
denied that he purchased the cell phone from Angirai Soundo. He indicated that
he was shocked by the visit from the police and was busy wondering where the
seller was when he was asked if he could identify him. He was then taken to the
police truck in which the only occupant was the handcuffed first accused
person. He immediately identified him as the seller. The two of them were taken
to the police station.
Detective
Assistant Inspector Nekati who has been in the force for 19 years was assigned
the investigation of the murder case on 11 July 2007. He received information
from a police informer; the late Angirai Soundo. He recovered a CD carrier bag
from Angirai Soundo which was identified by Father Sylvester as his. Angirai
allegedly obtained the bag from an unidentified woman who was linked to the
first accused. He located the first accused in Mutare Central Prison and booked
him out on 20 August 2007. He warned and
cautioned him on 22 August 2007 and recorded a warned and cautioned statement
from him. The statement was not confirmed on the face of it as required by the
law. There was a departmental document that was used by the confirming
magistrate in the confirmation process that was written “confirmed” and was
signed and dated. Mrs Fero conceded
that the statement had not been confirmed in accordance with the law and
practice. She sought a postponement to call the magistrate who had presided
over the proceedings. On 30 March 2010 she indicated from the bar that she was
unable to call him as he had left service and was working in Namibia. She
elected to go into a trial within a trial.
Joseph
Nekati and Joseph Jengeta testified in regards to the recording of the warned
and cautioned statement. The recording
detail Nekati recorded the statement from accused one on 22 August 2007 in his
office at Mutare Central police station. He alleged that he did not witness the
accused being assaulted by a baton stick or an empty coca cola bottle. He did
not witness the handcuffed accused on a stretcher machine suspended on a pole
placed between his legs. He denied that the accused was assaulted and had no
knowledge concerning how he sustained the injury on his left eye for which the
mark was still visible even as he testified. He distanced himself from the
allegation that the first accused was assaulted by a posse of five to six
detectives by averring that he was involved in the collation of documents and
not in the interrogation of the accused.
Under
cross examination he stated that when he booked the first accused out of Mutare
Prison he was in good physical health and did not have any injuries on him. He
had the accuracy of the interpretation certified by a court interpreter before
he took the first accused to court on the following day for the confirmation of
the statement. He alleged that the statement was confirmed on 23 August 2007.
He failed to explain how the same statement showed that the court interpreter certified
its accuracy on 25 August 2007. He
admitted that on the departmental document used by the magistrate in the
confirmation proceedings the date stamp of 28 August 2007 was superimposed on
that of 23 August 2007. Although he was in charge of documentation he could not
explain the anomalies in the date stamps. He agreed that some photographs of
the first accused were taken during subsequent indications. He averred that
they were not processed because the ZRP failed to purchase the chemicals
required to develop the negatives. He denied that the photographs would reveal
a heavily bandaged accused person with a cut above his eye. He said when he
booked out the accused; although he did not decline to answer any question he
was uncooperative. His interrogation by five police detectives started on 21
August 2007. The idea was to establish the role he played and the benefits that
he derived from the criminal enterprise. He was apprised of the results of the
interrogation. He alleged that over the two days of the interrogation the
accused became very cooperative. He saw no anomaly in the use of a team of five
detectives to interrogate a very cooperative suspect for two days. He averred
that the team would put questions and “demand answers.” He did not observe the
swollen face and cut on the eye for which accused was treated at Mutare Remand
prison. The witness read the allegations to the accused and interpreted the
preamble into Shona. Jengeta who was heavily involved in the interrogation witnessed
the statement even though he could draw from a wide pool of officers who were not
involved in the investigations. He indicated that the statement was recorded
while the accused sat on the floor and Jengeta stood next to the witness who
was seated on a chair. He was horrified by the suggestion that counsel expected
him to supply a murder suspect with a chair to sit on in order to treat him as
an equal. He denied that the accused was assaulted by a baton stick which
caused the injury on his left eye. He also denied that he was assaulted by an
empty coca cola bottle. He was not familiar with an interrogation technique
called the bridge or the stretcher machine. He denied that the suspect was
assaulted while handcuffed and suspended from a pole placed between his legs. He
denied that the accused was forced to sign the statement. He was adamant that
the statement emanated from the accused. It took 15 to 20 minutes to record the
statement. He denied that the statement was ascribed to the first accused
because he was a friend of a suspect called Sam Masaiti.
Joseph
Jengeta, a loss control officer with the Wattle Company of Zimbabwe was a
detective sergeant at the time of the murder with 10 years service in the
police force. He was present when the first accused was called upon by
detective assistant inspector Nekati to make a statement. He made it in Shona
and it was reduced to writing. Later it was translated into English. The
witness read it back to the accused who appended his signature and subsequently
the recording detail and the witness followed suit. He was part of the
interrogation team that questioned the accused person for three days before he
was invited to make a statement. He denied that the statement was written by
the police from information they had received before they interrogated him. It
took 30 minutes to record the statement. He denied that the statement was
ascribed to him because he was a friend of a suspect called Sam Masaiti.
He
was cross examined. He acted as the liaison between the interrogating team and
the investigating officer. He participated in questioning the first accused whom
he found fairly cooperative. The accused was reticent in answering certain
questions but volunteered answers in others. He volunteered information after
appreciating the depth of the information the interrogating team had in its
possession. He distinguished between interviewing and interrogating by averring
that the former depicted cooperation and the latter force. He denied assaulting
the first accused in any way. He denied that when photographs were taken the
cut above his left eye was bandaged. He
confirmed Nekati's testimony on their respective positions in Nekati's office
during the recording of the statement. He disputed that accused was at an
unfair advantage during the recording of the statement as he was handcuffed and
seated on the floor notwithstanding that he was not a flight or security risk
and a chair could easily be procured for him.
The
two police detectives contradicted each other in regards to whom between them
read out the recorded statement to the accused and on the length of time it
took them to record the statement.
Simon
Muruju gave evidence on how the statement was recorded. He said he was taken
from prison for two consecutive periods of five days. He would be taken on a
Monday and returned on a Friday. He narrated the ordeal he underwent on each of
the ten days that he was in police custody. On the first Monday he told the
police what a friend and neighbour Sam Masaiti had told him about the robbery
and murder. He led them to Sam Masaiti's residence but he had flown away. He
had gone with Masaiti to Mozambique.
In Mozambique Masaiti told him where the computers he was carrying had come
from. The police were not pleased with his story. They commenced to hit him so
that he would confess to the murder. He was tortured using a technique called
the bridge or stretcher machine. The detectives ordered him to squat. A pole
was placed behind his knees. He was lifted and each end of the pole was held by
a detective against a table. He was suspended with his head facing the floor.
Nekati, Jengeta, Tashaya, Biri and Nyakuwanika took turns to assault him with a
baton stick and an empty coca cola bottle on his soles, knees and elbows. On
the following day Tashaya hit him with a baton stick on the head above the left
eye. The scar was still visible above his left eye. He was bandaged on his
return to prison on the first Friday. When he was rebooked the following week he
was again tortured on the bridge on Monday. The following day he was taken for
indications. The photographs that were taken would reveal that he was bandaged.
On the Wednesday he was forced to sign the statement. After the assault he was
taken to Nekati's office and forced to sign the statement in issue. When he
signed it he was in pain, sick and swollen.
Under
cross examination he averred that the records at Mutare prison would show the
exact dates that he was taken from prison. He alleged that he was taken to
Nekati's office during the second period. Nekati who sat in a chair shoved the
statement at him and ordered him to sign it. Jengeta stood by in the office. He
was then returned to the police cells. He spent two nights in police cells
before he was taken to court. The police detectives Nyakuwanikwa and Tashaya
who accompanied did not leave the courtroom when the court was cleared for the
confirmation of the statement. He simply agreed to the contents of the
statement because the detectives who took him to court threatened to take him back
to the police station if he disowned the statement. He was treated at Mutare
prison dispensary after the confirmation. Masaiti did not tell him that he had
stolen the property; he assumed it was stolen when he came to know of the
crime.
The
law on the admissibility of extra-curial statements is clear. In terms of s 256
(1) of the Criminal Procedure and Evidence Act, supra, the statement must have been made freely and voluntarily
without any undue influence. The meaning of “freely and voluntarily without
undue influence” was dealt with in detail by DUMBUTSHENA JP, as he then was, in
S v Slatter & Others 1983 (2) ZLR
144 (HC). He used such phrases as “improper external impulses brought to bear
on the confessors' will; psychologically coercive pressures and inducements and
physical pressures.” At 168D-173H he outlined the allegations made by each
accused in that case which he believed constituted undue influence. In S v Wood & Ors 1993 (2) ZLR 258 (S) at
268A GUBBAY CJ used the phrase “external factors” in defining undue influence.
Case
law reveals that there are certain overt and covert factors that investigators
employ that negative the admissibility of statements made by suspects or
accused persons. In the present case, the overt factors that the first accused alleged
were employed were the use of the bridge machine, leg irons and handcuffs;
assaults using the baton stick, an empty coca cola bottle and booted feet. The
covert features were the threats of further assaults and further detention at
the police station; and the antagonistic interrogation and recording
environment.
Mrs
Fero conceded that the unequal power
play exhibited in the recording detail's office between the accused and the two
police officers was not conducive to the recording of a free and voluntary
statement. The accused was ordered to make a statement while he sat on the
floor. In that position and in handcuffs he was ordered to sign the statement
in issue. Common courtesy dictated that he be provided with a bench or chair to
sit on. No reason was proffered on why he gave a statement and signed the statement
while he was handcuffed other than that he was a murder suspect. Both police
officers indicated that he was not a security risk. The statement was adduced in
the presence of and witnessed by a detective who had taken part in the heavy
and unrelenting interrogation of the accused with four other detectives for
three days.
The
allegations of assault and ill treatment were confirmed by the scar on the
accused's upper left eye. The two police witnesses used words such as “interrogation
and demanded answers” that portray that the accused was not fully cooperative
as stated by Nekati or fairly cooperative as averred by Jengeta. A cooperative
suspect would not require three days of heavy interrogation by a team of five
detectives. The attempt by the investigating officer to distance himself from
the interrogation of the accused betrayed his knowledge of the assaults. The
accused gave detailed evidence of the stretcher machine method of torture which
had the ring of truth. I did not believe the sanitized versions given by the
two police detectives who after all were by virtue of their office professional
witnesses.
The
test of admissibility was set out by DUMBUTSHENA CJ in S v Dhliwayo & Anor 1985 (2) ZLR 101 (S) at 118C thus:
“In my judgment
the overriding consideration in assessing the totality of the evidence on
admissibility is whether, in the circumstances prevailing during the period the
appellants were detained in police custody under conditions they have
described, there are no elements of inducement which rendered the making of the
statements not free and not voluntary. In examining this factor the court must
scrutinize the totality of the evidence with great care.”
In
the present matter, such an examination reveals that the environment existing
during the period the accused was detained at the police station and in the
recording detail's office when the statement was recorded was intimidatory and not
conducive to the making of a free and voluntary statement. Whether the statement is true is not the
point. McNALLY JA warned in S v Donga
& Anor 1993 (2) ZLR 291 (S) at 297B that:
“The trial
within a trial is about the admissibility of the statement and not about its
truth. It may well be perfectly true, but if it was obtained by improper means
the law says it is not admissible in evidence.”
I
was satisfied that the statement was improperly obtained and thus declined to
admit it into evidence.
The
trial continued with the testimony of Nekati and Jengeta on the nature and
extent of their investigations. Nekati recovered a CD carrier bag from Angirai
Soundo who purportedly purchased it from the first accused's girl friend. The
police officer did not recall the name of the girl friend. It was positively
identified by Father Sylvester. The first and second accused persons were allegedly
implicated by the late Joseph Maira who was the first suspect to be
apprehended. He died before the trial started.
He
was cross examined by the first accused's counsel. In the light of the
jettisoning of the warned and cautioned statement, he relied on the recovery of
the CD carrier bag and the Nokia 5110 cell phone to link the first accused with
the crime. The first accused led him to the residence of the purchaser of the cellphone.
He took the purchaser to the vehicle and asked him, firstly if he knew the
accused who was seated in the back of the police truck and secondly, whether he
had purchased anything from him. He denied that the first accused identified
Angirai as the seller of the cell phone. He admitted that he did not conduct an
identification parade. He stated that he did not search for nor record any
statement from the first accused's girl friend.
Jengeta
in the company of detective sergeant Mubari, Nyakuwanikwa and Mavhengere recovered
a carton of cooking oil and a carton of kapenta in Rusape; an assortment of
compact discs and cooking oil in Sakubva and a computer central processing unit
and key board in Mozambique.
The first accused accompanied the police to Mozambique. A Mozambican customs
official who confiscated the computer accessories at a road block identified
the first accused as the person from whom the goods were seized. He later
handed the goods to the Mozambican police in Manica.
Under
cross examination Jengeta stated that he did not record the name of the
Mozambican customs official who identified the first accused as the one from
whom the goods were confiscated. He averred that the customs official allegedly
released the first accused to enable him to collect proof of ownership of the
goods.
The
State could not call Erina Sithole as she died before the matter came for
trial. It failed to locate Watson Chikuruwo who was on an outstanding warrant
of arrest and was believed to be in South Africa. Owen Chapungu could not be called to testify
because he was bedridden in Bulawayo.
At
the close of the State case the application for the discharge of the second
accused was granted after the State properly conceded that no evidence had been
led to establish a prima facie case
against him. Simon Muruju was put to his defence. He stated that he lived in
the same locality with Sam Masaiti and Angirai Soundo. In July 2007 Angirai
sought to sell a 5110 cell phone to him. He did not purchase it because he had
no money. One day as the two were going to sell their wares traveling along
their usual route, as was their custom, Angirai pointed out a house with an
avocado tree as the place where he had sold the cell phone. When the police
arrested him he volunteered this information and led them to the house in
question. The police parked their vehicle close to that house and he pointed it
out to Nekati. Nekati returned in the
company of a visibly terrified man. The man was relieved when Nekati identified
the first accused as the seller.
He
further alleged that he used to go to Mozambique to sell sugar. On one
occasion he went with Sam Masaiti after illegally crossing the border from Zimbabwe.
Masaiti had goods in a bag which he later told him were computer accessories.
Along the way they were discussing the robbery and murder which were topical in
Mutare at the time. The two separated in Mozambique. He disputed his
identification by Tennis Rino as the seller of the cell phone.
He
was cross examined. He denied selling the cell phone to Tennis Rino. He did not
know Rino until the police brought him to the car. He denied committing robbery
or murder. He said Masaiti never disclosed to him that he had participated in
the offence. This was at variance with his defence outline in which he averred
that Masaiti told him of his participation. He said he sold both sugar and
cigarettes. He told the police he suspected Masaiti of committing the offence.
The agreed evidence in brief was that:
- A robbery took place at the Spiritans Catholic Centre
at 26 Davey Road
Fern Valley Mutare in the early hours of the morning of 10 July 2007.
- A night watchman Livingstone Chikova was bludgeoned
to death while a fellow night watchman and the other occupants were
assaulted and immobilized by the robbers.
- The assailants were not identified.
- Some of the stolen items which included a 5110 Nokia
cell phone were recovered and identified by two of the priests who were
based at the Centre.
- The accused Simon Sam Muruju led the police to the
house in Sakubva where the cell phone had been sold.
- A central processing unit and computer keyboard were
recovered at Manica Commando police station in Mozambique by the police
who went there n the company of the first accused.
Both counsel were agreed that there was no direct evidence to establish
that the first accused killed the deceased. Mrs Fero contended that the State had proved beyond a reasonable doubt
that the accused sold the recovered cell phone to Tennis Rino. She relied on
four factors for the contention that the accused was the murderer. Firstly,
that the accused voluntarily led the police to the house where Tennis Rino
resided and secondly, that Tennis Rino identified the accused as the seller. Thirdly,
that the computer accessories recovered in Mozambique were seized from him at
a customs road block and fourthly that a Mozambican customs official had
identified him as the person from whom he had seized the accessories. She
argued that as the cell phone and the computer accessories had been stolen
during a robbery in which the deceased died the possession and subsequent sale
of the same by the accused showed beyond a reasonable doubt that he was one of
the robbers who had deliberately killed the deceased and submitted that he was,
therefore, guilty of murder by association.
Mr Mudheredhe, on the other
hand, contended that the identification by Tennis Rino and the purported
identification by a Mozambican customs official carried no weight as both were improper,
unprocedural and calculated to prejudice the accused. He prayed for the
acquittal of the accused person.
The issue for determination is therefore whether or not the accused was
properly identified by Tennis Rino as the seller of the cell phone and
possessor of the computer accessories that were seized by a Mozambican customs
official.
It was common cause that the accused led detective assistant inspector Nekati
and two other police detectives to Tennis Rino's residence where the cell phone
was sold. It was common cause that the accused did not supply the name of the
person who purchased the cell phone to the police. It was agreed that he led
the police to the place where the cell phone was purchased and not to the
person who purchased the cell phone. It was common cause that when Tennis Rino
became aware of the purpose of the police visit to his residence he was visibly
terrified. He stated that he mused on the whereabouts of the seller. His
apprehension was broken by the attitude and directive of Nekati who requested
him to proceed to the vehicle and asked him whether the sole handcuffed
occupant in the back of the truck was the seller. He affirmed that he was. The
witness and the accused rode to the police station, together, in the back of
the truck.
It was apparent from the testimony of Tennis Rino that he did not know
the name of the person who sold the cell phone to him. He had never seen this
person before he purchased the cell phone. He spent 15 to 20 minutes with him.
He did not describe the seller by face, voice, build, gait or dress. He did not
indicate the period that elapsed between the date he purchased the cell phone and
the police visit. The impression we discerned from his testimony was that he
was relieved of his anxiety on the whereabouts of the seller by the leading and
suggestive question that he was asked by Nekati at the police truck. The proper
thing for the police to have done once they located the purchaser was to
arrange for an identification parade. The identification conducted at the
police car was most improper, unprocedural and prejudicial. See S v Ndhlovu & Ors 1985 (2) ZLR 261
(S) at 263G-264E.
The accused alleged that the police informer Angirai Soundo showed him
the house with an avocado tree where he sold the cell phone. This house was
along the route they often used to go to the market to sell their wares. He led
the police to that house after they failed to locate Angirai at his residence. In
our view the accused's explanation was probably true.
Jengeta testified that a Mozambican customs official identified the
accused who was in his tow as the person from whom he seized the computer
accessories. The customs official was not called to testify. The basis of his
certainty that it was the accused was not indicated. The procedure followed in
the seizure of goods in Mozambique
was not outlined. We do not know whether any document, a copy of which would remain
with the official, was issued to the accused. The period that elapsed between
the seizure and identification was not stated. The failure to conduct an
identification parade with the customs official was also fatal to the State
case.
The accused's version was that he illegally crossed the border with Sam
Masaiti. They discussed about the robbery and murder; which at the time were
topical in Mutare. Masaiti was carrying computers in a bag while he had
sugar. They separated in Mozambique. He
did not know what became of Masaiti in Mozambique. On his return from Mozambique he
went to his rural home in Nyanga where he was arrested for another offence.
Even if we were to believe his version, it was not clear whether the computers
that Masaiti had were part of the loot stolen from the Spiritan Catholic
Center. We do not know
whether the accessories recovered from Manica Commando police station were ever
in Masaiti's possession.
In the end, in the absence of evidence linking him to its commission, murder
cannot be attributed to the accused person merely because of his friendship
with unsavory characters such as Soundo and Masaiti. It seems to us that the
chain of evidence was adversely affected by a combination of the deaths of
various vital witnesses and poor police investigations. In our view, the State
has failed to show beyond a reasonable doubt that the accused person murdered
the deceased.
It is for these reasons that we find the accused person not guilty and
acquit him of murder.
Attorney General's office, legal practitioners for the State
Bruce Mujeyi Attorneys, the first accused's legal practitioners
Chinganga and
Company, the second accused's legal practitioners
