Court Management re: Postponement of Proceedings iro Trial Within a Trial and the Exercise of Summary Jurisdiction

HH15-10 : THE STATE vs ROY BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

In this case, the State is seeking the impeachment of its main witness, one Michael Peter Hitschman, in terms of section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the grounds that the witness has materially departed from his previous statements.The section provides that:"316 Impeachment and support ...

"316 Impeachment and support of witness credibility

It shall be competent for any party in criminal proceedings to impeach or support the credibility of any witness called against or on behalf of that party in any manner and by any evidence in and by which, if the proceedings were before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by such party, and in no other manner and by no other evidence whatever:

Provided, that, any such party who has called a witness who has given evidence in any such proceedings, whether that witness is or is not, in the opinion of the judge or judicial officer presiding at such proceedings, adverse to the party calling him, may, after the said party or the said judge or judicial officer has asked the witness whether he has or has not previously made a statement with which his testimony in the said proceedings is inconsistent and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been mentioned to the witness, prove that he previously made a statement with which his said testimony is inconsistent."

It is trite and a matter of elementary law, that, a party calling a witness may not contradict, discredit, or challenge its own witness's evidence unless that witness has been declared a hostile or adverse witness by the court. If, however, any authority is required for that proposition of law, one need not look further than the case of S v Mazhambe & Ors 1997 (2) ZLR 587.

JW HORN, in his article, Discrediting One's Own Witness, published in the Rhodesia and Nyasaland Law Journal 1961…, defines an adverse witness in the following terms:

"An adverse witness is one who shows himself to have a mind hostile to the party calling him, or to the interests of such party. Such hostility may be inferred from one or more of the following: his demeanour in the witness stand, his relationship with either party, his previous conduct, or the fact that he has made a previous statement inconsistent with his evidence."

Having said that, the learned author proceeds to say, that, once a witness has been declared adverse, the party calling the witness is free to cross-examine him.

Where the witness gives evidence which is inconsistent with a statement made by him previously, the party calling him may prove such statement.

The nature of the previous statement takes many forms. The learned author states that:

“5. Such a statement may be oral, or written, and need not have been made to the party calling the witness, or for the object of being used in the proceedings in which the witness is testifying.

6. The witness should be given sufficient particulars of the alleged statement to designate the occasion upon which it was made.

7. The witness should then be asked whether he admits to having made a statement on the occasion specified. If the statement is signed, he may be asked to admit or deny his signature.

8. The previous statement must be shown to be inconsistent with the testimony of the witness by the party desiring to produce it. Any statement, or part of any statement, which would be inadmissible if led as evidence cannot be relied upon to show such inconsistence.”

The facts giving rise to these impeachment proceedings, are, to a large extent, common cause.

The brief undisputed facts are, that, on 6 March 2006, the witness was found in possession of a large quantity of firearms, ammunition, and arms of war. He was then arrested and detained, together with the recovered weapons and ammunition, at Adams Barracks, by a group of State agents comprising the police, army, and CIO personnel. He was later transferred to police custody on charges of insurgency, terrorism, sabotage, and unlawful possession of firearms.

While under detention, the witness made certain written statements and indications.

On 7 March 2006, he made a hand written statement at Adams Barracks, and, on 11 March 2006, he made a typewritten affidavit at CID offices.

The witness also made indications which were captured on video tape at Adams Barracks.

In all those statements and indications, he confessed and admitted having committed the offence in collusion with others - including the accused. He implicated the accused, alleging that he was responsible for financing the whole criminal enterprise to violently effect regime change through force of arms.

The witness admitted, in open court, that, he made the said statements and indications to State authorities. He however placed the admissibility of the statements and indications in issue saying that they were involuntarily extracted from him through torture under unfriendly and hostile circumstances.

It is common cause, that, when the witness made the said statements and indications he had not been properly warned and cautioned.

The handwritten statement was not signed or witnessed by anyone.

The witness told the court, that, his tormentors were drunk and disorderly, such that, in their drunken state, they omitted to make him sign the statement. Having noted the omission, he then deliberately refrained from signing it, signifying his lack of free volition.

The witness was subsequently charged with substantially the same charges as the accused. He appeared before CHITAKUNYE J whose verdict reads as follows;

"From the above, this court is of the view, that, the accused cannot be found guilty of the main charge. He (is) found not guilty and acquitted on the main charge. He is, instead, found guilty of the possession of dangerous weapons in contravention of section 13(1) of POSA."

He was then sentenced to four years imprisonment of which one year was suspended on appropriate conditions. He has since completed serving the prison term although he has an appeal pending in the Supreme Court.

Upon being served with a subpoena to give evidence as a State witness in these proceedings, the witness responded by delivering to the Attorney General an affidavit in November 2009. In paragraph 12 of that affidavit, he absolves the accused of any wrongdoing or complicity in the commission of any related charges. In paragraph 12 he had this to say:

"Consequently, therefore, and as the police are fully aware, there is no relevant testimony I can give in respect of the charges now being brought against Mr Leslie Roy Bennett who was not involved in my firearms business or in any dealings I had with firearms. In any event, I do not believe that I have been validly subpoened, and, unless advised to the contrary, I do not intend to appear in court on 9 November 2009."

Despite his protests, the witness attended to give evidence as a State witness at the accused's trial.

It is also common cause, that, the Attorney General called the witness to give evidence with the full knowledge that he was likely to give evidence adverse to the State case.

Not surprisingly, when he appeared in court, the witness gave evidence which is unfavourable to the State case and heavily leans in favour of the accused.

It is on that basis, that, the State put in motion these impeachment procedures.

I now turn to consider the admissibility of the previous inconsistent statements upon which the State relies in its bid to impeach its own witness.

It is not in dispute that both statements and indications were made at the instance of State authorities.

It is a legal requirement, that, the police must properly warn and caution an accused person before asking him to make a statement for production in court.

It is also common cause, that, the witness was not properly warned and cautioned according to law before making the statements.

That being the case, the statements were obviously inadmissible against the witness; this explains why they were not used at his own trial.

It follows, as a matter of common sense, that, if the statements and indications were inadmissible against the witness, they were equally inadmissible against his alleged accomplice, that is to say the accused.

Having examined the statements and indications in question, I have no doubt, that, they are not ordinary witness statements. They are, in fact, confessions made by the witness, not in his capacity as a witness, but, as an accused person pending his own prosecution.

Section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

"259 Confession not admissible against other persons

No confession made by any person shall be admissible as evidence against any other person."

The section is couched in simple, clear language such that it needs no further elucidation. It constitutes a prohibition thereby making its provisions peremptory and absolute.

I accordingly hold, that, the statements and indications in question, if tendered as evidence, will be inadmissible against the accused.

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

The applicant applies for bail pending trial on allegations of committing four (4) Counts of robbery and one count of attempted robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] between the period 19 April 2018 and 14 May 2018.

The applicant, a 28 year old female adult, is a resident of Epworth, Harare. In the four (4) Counts of robbery charged, the applicant allegedly committed the robberies acting in concert with two accomplices, namely, Thulani Ndlovu and Last Sithole who are residents of Epworth as well. The robberies, which were committed using the same modus operandi around Harare and Chitungwiza, involved robbing complainants of their motor vehicles by use of threats and violence.

In Count 5, where the applicant is co-charged with the same two accomplices, the complainant successfully resisted being robbed of her money and other property.

In two of the Counts, the applicant was the one who would take to the steering wheel of the vehicle following the robberies, and, in the other two counts, she would be an active participant.

The State vehemently opposed bail on the main basis that there was overwhelming evidence against the applicant in that she was heavily linked to the offence.

In particular, the applicant was alleged to have been the one who jumped into the driver's seat and drove away the motor vehicles in two (2) of the Counts following the robbery of the complainants of their vehicles.

The applicant was arrested whilst driving one of the vehicles. The police alleged that the applicant made indications leading to the recovery of one of the vehicles, subject of one of the robberies.

In her application, the applicant averred that bail is a right in terms of the new Constitution. She surmised that the seriousness of the offence was not a bar to the admission of an applicant to bail. She quoted the case S v Tsvangirai (no citation given) and gave it as an example in which Tsvangirai, who faced a treason charge, which the applicant perceived as more serious than the charges she is facing, was admitted to bail.

There is no gainsaying that the grant or denial of bail is not informed solely by the seriousness of the offence. A serious offence, however, invariably attracts a stiffer or heavier sentence compared to a less serious offence. The prospects of a heavy penalty is viewed as a factor more likely to induce in the accused an incentive to abscond to avoid such sentence if convicted. The fact of the offence being a serious one is, therefore, taken together with other relevant considerations - a factor of great impact in considering whether or not compelling reasons to deny the applicant bail have been established.

The applicant denied that she was arrested whilst driving the motor vehicles as alleged by the State counsel in his response which was supported by an affidavit sworn to by the investigating officer. She averred that she had recently acquired a driver's licence, in September 2017, and did not have any experience to “drive off at a vehicle high jacking” (to use her words).

She also denied that she had recently been released from prison under the Presidential Amnesty as alleged by the State. She challenged the State counsel to provide proof of the fact that she was a beneficiary of the Presidential Amnesty of March 2018.

The applicant submitted that she operated a flea market, was a mother to two minor children and did not have any pending cases. She offered to abide by the most stringent bail conditions which the court considered proper to impose.

Since the applicant was a self-actor, I exercised the court's duty to assist an unrepresented applicant to ensure that such applicant is not prejudiced through a lack of ability to properly present his or her case.

I also considered that it was necessary to have the issue of previous convictions properly ventilated because the State alleged that the applicant had been freed on Presidential Amnesty meaning that she had a previous conviction.

Since the offences which she is facing were committed in May 2018, if, in fact, she had been freed on amnesty in March 2018, it would mean that she allegedly committed the present offences hardly two months after benefitting from the amnesty.

An applicant in a bail application is compelled, in terms of section 117A(5) of the Criminal Procedure and Evidence Act [Chapter 9:07], to disclose previous convictions and pending cases. A wilful failure to do so grounds an offence in terms of section 117A(8) of the Criminal Procedure and Evidence Act punishable with a fine of up to Level 7 or imprisonment of up to two (2) years or both.

The offence is equally committed where the applicant supplies false information in regards to previous convictions and pending cases.

In terms of section 117(2)(d) of the Criminal Procedure and Evidence Act, the judge or court presiding over a bail application is required to take into account, inter alia, whether or not the applicant supplied false information on arrest or during bail proceedings.

In casu, if the applicant was being untruthful, to deny that she was a beneficiary of the Presidential Amnesty, which fact would mean that she had a previous conviction(s), it meant that she fell foul of section 117A(5) of the Criminal Procedure and Evidence Act. It also meant that the court would be required, in terms of section 117(2)(d), to take into account that the applicant had supplied a false denial that she had previous conviction.

Obviously, an adverse inference would have to be drawn against her being a proper candidate for release on bail given her untruthfulness considered together with other relevant factors.

An adverse inference can only be properly drawn where the court is considering proven facts.

I therefore directed the State counsel to provide proof of the applicant's release on Presidential Amnesty and postponed the hearing.

At the resumed hearing, State counsel…, capitulated on the issue of the applicant's alleged release on Presidential Amnesty. He submitted that the police had supplied wrong information on the Remand Form 242 when they endorsed on the form that the applicant and her accomplices were beneficiaries of the recent Presidential Amnesty.

The court expressed its disquietude at such despicable and abhorrent conduct by the police in endorsing untruthful information on the Request for Remand Form. The conduct of the police, in this regard, was detestable because the false information was intended to portray the applicant as an incorrigible criminal or repeat offender who is given to crime, and would, if released on bail, be likely to commit further offences.

Police are exhorted not to mislead the court because courts justifiably end up not taking the word of a policeman for objective fact and this can result in dangerous criminal suspects being released on bail because the courts will have a negative perception of the professionalism of the police.

The court therefore accepted that the applicant did not mislead it when she denied that she was a beneficiary of the recent Presidential Amnesty of March 2018.

Counsel for the State, whilst conceding as above, however, tendered a certificate of previous convictions showing that under case R684/14, the applicant and two accomplices, one with whom she is jointly charged in the five (5) Counts the subject of this bail application, was, on 12 September 2014, convicted on three (3) Counts of robbery by the Regional Magistrate at Harare. She was sentenced to 7 years imprisonment on each Count making a total of 21 years imprisonment. 5 years of the 21 years were suspended for 5 years on conditions of good behaviour.

The applicant admitted the previous convictions.

The court enquired of the applicant as to why she did not disclose that she had previous convictions. In response, the applicant stated that she inadvertently omitted to include the disclosure in her final application but had included it in the draft which she first prepared.

She stated, further, that the State was trying to use her previous convictions as an unjustifiable reason to have the court deny her bail.

I did not find the applicant's explanation, that she mistakenly omitted to disclose her previous conviction, to be truthful. I say so because such a disclosure is not only a peremptory requirement but is a fact which any applicant who has previously been convicted by a court cannot forget. In my view, the non-disclosure was intended to portray the applicant as a person whose past was crime-free, and, in the process, use the deception to persuade the court or judge to favourably determine the bail application in the applicant's favour.

Counsel for the State requested the court to summarily invoke the provision of section 117A(8) of the Criminal Procedure & Evidence Act [Chapter 9:07] and find the applicant guilty of a willful non-disclosure of previous convictions contrary to the requirements of section 117(5) of the Criminal Procedure and Evidence Act. Counsel for the State submitted that a clear message should be sent to bail applicants that it is a serious offence to fail to disclose previous convictions and pending cases.

For her part, and in response, the applicant stated that she was sorry for the omission.

I have carefully considered the State's request that the applicant be summarily tried for contravening of section 117A(5) as read with section 117A(8) of the Criminal Procedure and Evidence Act.

A failure to disclose previous convictions and pending cases leads to an inference that the applicant is dishonest. The failure also shows that the applicant will have failed to take the court into his confidence. The applicant's sincerity in making the undertakings which he or she makes in support of his or her admission to bail is brought into question by reason of the non-disclosure; see Julius Dansab v State CC (SA) 38/2009.

The temptation to summarily deal with and punish an applicant who has failed to disclose previous convictions or pending cases looms large especially, as in this case, wherein the applicant's explanation for non-disclosure does not stand scrutiny. The court must, however, be wary of the correct procedures to follow in dealing with the non-disclosure offence as aforesaid.

In my reading of the sections, section 117A(5) of the Criminal Procedure and Evidence Act imposes a duty or obligation on an applicant applying for bail to disclose pending cases and previous convictions. Section 117A(8) of the Criminal Procedure and Evidence Act creates the offence of wilful non-disclosure, by the applicant, of pending cases and previous convictions. The latter section provides for a penalty upon conviction.

There is nothing in the sections to support that the court can summarily convict and sentence the applicant who has failed to comply with the provisions of section 117A(5) of the Criminal Procedure and Evidence Act. The Bail Court is entitled to consider the non-disclosure adversely against the applicant in making its determination whether or not to grant the applicant bail. Beyond that, it is the prerogative of the State to prefer a case of a contravention of section 117A(5) of the Criminal Procedure and Evidence Act and prosecute it separately. The Bail Court judgment, making a finding of non-disclosure, acts as an indicator that a crime warranting investigation and prosecution may have been committed.

In bail applications, the court takes into account whatever information is placed before it and forms an opinion on such information. A bail determination is, in fact, a value judgment.

A contravention of section 117(A)(5) of the Criminal Procedure and Evidence Act creates a specific offence to be tried, with the State being saddled with the normal onus to prove the alleged wilful non-disclosure beyond a reasonable doubt. The Bail Court should not be turned into a trial court to determine the issue of wilful non-disclosure, and, thereafter, to use its judgment in the trial in the bail application.

In practice, there are very limited circumstances in which a court seized with a criminal matter will deal, summarily, with distinct crimes arising in ongoing proceedings. Examples which come to the fore when a court can suspend the hearing before it to summarily determine an ancillary criminal crime and revert back to the main matter would be;

(a) Where there has been committed a contempt of court in facie curiae; see S v Machona (2006) ZWHC 41;

(b) The determination of the admissibility at trial of confessions and statements made by the accused in terms of section 256 of the Criminal Procedure & Evidence Act [Chapter 9:07] when a trial within a trial is held separately from the main trial does not constitute the trial of a separate distinct crime arising during the conduct of trial but is just an example of an instance when a trial court can stay the main trial, engage in another trial, give a ruling thereon, and apply its ruling in determining issues in the main trial.

I therefore refuse to exercise summary jurisdiction for the alleged contravention of section 117A(5) as read with section 117A(8) of the Criminal Procedure and Evidence Act as requested by the State. It is up to the State to initiate a separate prosecution, if so advised, or even add the charge at the applicant's trial as an additional charge....,.

The application by the State, for the court to summarily deal with the applicant for a contravention of section 117A(5) as read with section 117A(8) of the Criminal Procedure and Evidence Act [Chapter 9:07] is non-suited for procedural irregularity.

HHH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

A point in limine is a motion moved by one of the parties to litigation at the very beginning of proceedings aimed at usually pulling the rug from under the feet of the other party, so to speak.

In limine motions are designed to facilitate the management of a case, generally, by deciding difficult evidentiary issues in advance of a trial. The normal purpose of such motions is to preclude the presentation of evidence deemed inadmissible and prejudicial by the party moving the motion. Although trial courts may exercise their inherent powers to permit non-traditional uses of motions in limine, when used in such a fashion, these become substitutes for other motions thereby circumventing procedural protections provided by trial on the merits.

They risk blind-siding the other party, and, in some cases, they could infringe a party's right to a trial.

They are difficult applications to succeed upon as the trial judge, at that stage, will not yet have much context to rule on admissibility of evidence. Thus, in the words of JUSTICE CONLON of the United States District Court in Hawthorne Partners v AT & T Technologies Inc and ENSR Corporation, 831 F 831 Supp 1398 (1993);

“Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context.

Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded. The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine.”

The point raised by the defendant should or could have been the subject of an exception.

It is purely a procedural question whether the determination of such points as raised in limine in trial proceedings should be described as an exception or the hearing of argument on a point of law or a point in limine: see Rule 152 of the High Court Rules, 1971.

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.

The appellant was charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that on 23 October 2011, at House Number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011.

The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight.

He was convicted after a full trial and sentenced to 13 years imprisonment.

The State's case was based largely on circumstantial evidence.

The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife, Nyasha Tsopotsa (Tsopotsa), and Sekai Guramatunhu (Guramatunhu), also a police officer.

The evidence of Tawanda Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased's. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap.

During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased's room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased's room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased's body. The deceased said to the appellant words to the effect: “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital.

The witness was found to be an honest, impressive, and reliable witness in the assessment of the court a quo.

The second witness, Nyasha Tsopotsa's evidence was to the effect, that, as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother, I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon's father!” a reference to the witness husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased's doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill-treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased's room.

The witness was instructed, by her husband, to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased's bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left.

As with Tawanda Miti, the court a quo was impressed by the witness demeanour. It found that her evidence was largely corroborative of that of Tawanda Miti. The court a quo also noted that the witness evidence, that the deceased accused the appellant of persistent harassment, and further said that the appellant ought to have finished her off, was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness.

Sekai Guramatunhu was the State's third and last witness.

On the night in question, at around 2:00 or 3:00am she was at the police station when Tawanda Miti entered the charge office with the appellant. After Tawanda Miti made a report to her she went outside to where Tawanda Miti's vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant's utterance was because the deceased was in pain.

The defence applied for discharge at the end of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State consented to the application.

The court a quo had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a prima facie case that the appellant had to answer.

In its ruling, the court a quo stated, inter alia:

“In short, the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.”

The appellant's evidence was to the following affect:

The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011, he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated.

When asked what sort of conversation he had with her, he said:

“I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her….,. They are two of my brother's sons….,.

I then advised her, that, by going to the bars like what she was doing, these young men were actually seeing them (sic), and, as such, was causing a lot of embarrassment….,.

She was silent during the time that I was telling her that.

But, she suddenly got up and said that she was going to set herself alight….,.

During the time that she was making that utterance she was actually making the way to the stove that was located next to the bed….,. It was a pram (primus) stove that normally uses paraffin. I had eventually bought that paraffin stove for use during the time that there will be no electricity….,. She suddenly got up, grabbed the stove, and poured the paraffin on herself….,. She let go the stove and she quickly grabbed the matches.

It was during the time that I quickly grab (sic) (grabbed) her by both hands as I was afraid that she might strike the matches. I then kept a firm grip on the hand holding the matches in order that she will not be able to lit (sic) (light) the matches. I took the matches from her and placed it in my pocket….,.

I then asked her why she wanted to set herself on fire….,.

She did not respond and she went back and sat on the chair and I sat back on my chair.

I then asked her why she wanted to set herself on fire and that I was just reprimand(ing) her not that I no longer loved her….,.

She did not reply.

I then kept on telling her to desist from her behaviour and that I was going to continue maintaining her as I have (sic) been doing before. Thereafter, she first remained silent. I then started to contact her aunt and her sisters; unfortunately I failed to get through to them. I continued sitting down trying to cool her down whilst advising her to desist from her behaviour.

It was after some time had lapsed, whilst I was trying to contact her aunt and her young sister and I was failing to get through. So we sat for quite some time….,. I was afraid to leave as I thought that maybe she might do something.

It was after we had settled for quite some time that she might have noticed that I was dozing as it was during the night that she took advantage because I just suddenly heard the sound of a chair being moved. When I got up she had already stood up and rushed to get another box of matches that I had not noticed.”

The appellant was asked how much time had elapsed between the time that she poured paraffin on herself and the time when she rushed to get another box of matches. His response was: “I think about 30 minutes when I was talking to her.”

He proceeded to state as follows:

“When I heard the sound of the chair and I got up he (sic) (she) was already stood up (sic) and picked up the matches box (sic) and she then struck the matches.

I also assumed, that, because of the time that we had spent after she had poured paraffin on herself that maybe it might have vapoured off. She actually directed the flame of the match on the bottom but it failed to catch and she put it under her arm and she then caught the fire….,.

She then screamed whilst advancing towards me….,. She appeared she actually wanted to grab me by the neck, but she missed; then she grabbed me by one of my hand(s) on the upper arm. During the time, she was now on fire. She actually held me in an indication that she did not want to let me go (sic).

It was then that I also caught the fire such that I also suffered injuries.

I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tape (tap) so that I put out the fire. She left hold of me as we were by the door and she was now in front. When we got to the tap, I instructed her to kneel down; I opened the tap and there was now water that was being poured on her head (sic) and all the body.”…,.

It is opportune to briefly digress at this stage and take note that in his confirmed warned and cautioned statement the appellant did not make any mention of having dozed off. He said that after setting herself on fire the deceased embraced him and he opened the door whilst she was so embracing him. He stated, inter alia:

“She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding. Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches (sic) and struck a match stick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tape (sic) where she poured some water on her. (sic) I followed her to the tape, (sic) helped her to extinguish the fire. I then went into the house to extinguish (the) fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time.”

The appellant further stated, in his testimony before the court a quo, that, after putting out the fire, he rushed towards the veranda where Tawanda Miti gave him a bucket which had water in it and told him to put out a fire that was burning inside the deceased's room. Inside the room, he saw something that was burning on the floor. It appeared to be a skirt, and he poured water on it thereby putting out the fire. There was another fire burning at the spot where the deceased had poured paraffin on herself. After putting out the fire in the room he went outside, and, in his words, he found the deceased “telling Miti and others that I had actually poured paraffin on her and set her on fire. But, I actually denied that and advised that she had done that to herself. But, after I had advised her that I am not the one who had poured paraffin on her, she then kept silent on that aspect.”

The appellant was asked how many minutes elapsed between the time that he put out the fire on her at the tap and the time that he found her alleging to Tawanda Miti, and others, that he had set her on fire. His answer was: “I think the incident could have taken about five minutes.”

He stated that when she was making the allegation she was no longer on fire as he had doused it.

It was also the appellant's evidence, that, during the time that the deceased was on fire and was crying out, he could not make out what she was saying.

Under cross-examination, the appellant said that the deceased called out to Tawanda Miti after he had put out the fire that was burning her and as he was putting out the fire in her room. He said that the deceased only screamed out the words “oh mother, I am dying” after he had put out the fire on her.

He further said, that, the deceased was lying about everything that she was saying to Tawanda Miti and the others. He accepted that the deceased did ask him why he had not also burnt himself. He said that she was lying but he thought that it was no use arguing with her considering the state of her injuries at the time and his concern was to seek medical attention for her.

As to why he had not asked or caused the deceased to remove the clothes on which she had poured paraffin, his response was that he did not think of it and that he thought the clothes would dry up.

He also thought that the deceased made the utterances that she made against him in order to “fix” him because he had exposed her infidelity of being seen in bars with other men.

The court a quo convicted the appellant on the basis that the circumstantial evidence placed before it proved beyond reasonable doubt that he had committed the offence. It also found that the State witnesses were credible witnesses.

It concluded, that, the utterances made by the deceased constituted res gestae and were admissible against the appellant.

It was the court a quo's view that the issue was whether it was the appellant who had poured paraffin on the deceased and set her ablaze resulting in the injuries from which she died and that the absence of a post mortem report was not fatal to the State case. It concluded that it was the appellant who had poured paraffin on the deceased and set her ablaze.

The appellant raised the following five grounds of appeal against his conviction and one against sentence:

“1. The Court a quo erred in coming to the conclusion that the State had proved beyond any reasonable doubt the appellant doused Modester Chikaka 'the deceased' with the paraffin and set her alight in the absence of admissible evidence supporting that conclusion.

2. The Court a quo lost its path in concluding that the deceased died from the fire in the absence of a post-mortem report supporting that finding.

3. The trial court erred in mis-applying the doctrine of res gestae by admitting inadmissible hearsay evidence of the deceased in circumstances where the State had not satisfied the pre-requisites of such admissibility.

4. The Court a quo misapplied rules of circumstantial evidence and misdirected itself by making a finding that the appellant committed the actus reus of murder in the absence of any proved facts from which that inference could be drawn.

5. The Court a quo fell into error by summarily rejecting the appellant's defence as inherently improbable that it could not reasonably be said to be true in circumstances where the evidence before it supported such a defence.

AD SENTENCE

6. The Court a quo erred in imposing a disturbingly severe sentence in circumstances where the Court a quo had made (a) finding that appellant's mitigation was considerably weighty.”

ISSUE TO BE DETERMINED

The issue to be determined is whether or not the State proved the appellant's guilt beyond reasonable doubt.

Counsel for the appellant based his oral submissions before us on five points:

(i) The first, which he indicated was not covered in his heads of argument, was that the court a quo proceeded under circumstances of an irregularity; the irregularity being that the summary of the State case contained allegations on which no evidence was led by the State, that such irregularity was designed to undermine the appellant's defence and colour the court's mind and that both these aims were achieved.

(ii) From the other four points that he said were covered in his heads of argument, the second point was that, on the application of the proper legal test, it cannot be said that the defence put forward by the appellant in the court a quo was false, and, consequently, worthy of the rejection by the court.

(iii) The third point was that the cause of death was not established in the court a quo.

(iv) The fourth point was that the court a quo irregularly admitted inadmissible hearsay evidence and went on to found its judgment on such inadmissible evidence.

(v) The fifth and final point was that the requirements for a conviction based on circumstantial evidence were not met a quo.

With regard to the first point, the contention was that the State made damning but false allegations against the appellant on which no evidence was led. Specific reference was made to paragraphs 2, 3 and 4 of the Summary of the State case as reflected at p2 of the record of proceedings.

Counsel for the appellant particularly highlighted paragraph 3 which reads:

“The accused proceeded to take a paraffin stove which was in the room and poured the paraffin onto the deceased. He took a box of matches from his trousers pocket, lit one match stick and threw it on the deceased's body setting her alight.”

It is my view, that, if the court a quo convicted the appellant purely on the basis of what is stated in the State Summary, and not on the basis of the evidence that was placed before it, then it goes without saying that the conviction would be baseless and would not survive this appeal.

If, as alleged, the court's mind was 'coloured' and the appellant's defence 'undermined' by the averments in the State Summary, such should be discernible from a reading of the court's judgment as it would have no cogency on the basis of the evidence that was placed before it. In this regard, I also take it, that, by the use of the word 'coloured' the defence meant that the court a quo was unduly influenced, in a negative manner, to the prejudice of the appellant.

It is trite that an appeal to this Court is based on the record.

It is also trite that an Appellate Court will not interfere with the decision of a trial court or tribunal unless the trial court or tribunal fundamentally misdirected itself in arriving at its decision. It is trite that an Appellate Court will not lightly interfere with a trial court's factual findings.

It is common cause that the appellant's conviction was not based on direct evidence. There was only circumstantial evidence that was adduced before the court a quo....,.

It must not be overlooked that the onus on the respondent was to prove its case against the appellant beyond reasonable doubt.

Counsel for the appellant's second, fourth, and fifth points revolve around the issues of the application of the evidential rules relating to res gestae and to circumstantial evidence.

The circumstantial evidence is made up of different aspects of the events that took place as the incident unfolded. The deceased's utterances, the subject of the conflicting contentions regarding hearsay evidence, with particular reference to res gestae, form one of the weighty aspects, among others, that emerge from the evidence that was placed before the court a quo.

The admissibility of the evidence of those utterances has been hotly contested by the defence.

What clearly emerged from the evidence by the State witnesses, which evidence the trial court accepted, was that during the time that the deceased was on fire she called out: “oh mother, I am dying” and she also called out Tawanda Miti's name.

Soon after the fire that was consuming her had been doused, and as soon as she saw Tawanda Miti, who she had called out to, she told him (Tawanda Miti), and the others who had come out, that the appellant had poured paraffin on her and set her alight.

The defence's contention is that this was hearsay evidence of utterances that did not amount to a spontaneous exclamation of a statement at the time of the relevant event, which would, at common law, constitute res gestae.

The submission was made, that, the deceased had had ample time for cogitation in the five minutes that elapsed from the time that she was burning, attempting to put out the fire, running to the tap, and running back, and then making the allegation, such that whatever she said at that stage could not qualify as part of the res gestae.

The argument was that the spontaneity requirement was not met.

Counsel for the respondent, on the other hand, submitted that the court a quo decided that the deceased's utterances were res gestae because she had screamed out and footsteps were heard by the first and second witnesses and that immediately upon returning from the water tap she had accused the appellant of having doused her with paraffin and set her on fire.

He submitted that the court a quo cannot be faulted for its finding that the failure by the deceased to name the appellant, at the time that she was burning, cannot be held against her if regard is had to the fact that, at the first opportunity, when she was no longer on fire, she named the appellant as the culprit.

Furthermore, that this was in the presence of the appellant at the scene.

Counsel for the respondent cited the case of R v Andrews [1987] 1 All ER 513 in support of his argument as regards spontaneity in cases involving res gestae. In his heads of argument, he gave the following quote, purportedly from the case, but did not give the specific page at which it appears in the Law Report:

“The test used by the courts, in determining spontaneity, is not necessarily one of exact spontaneity that is defined with mathematical precision. It is sufficient to establish approximate or substantial spontaneity.”

It was his submission, that, the court a quo correctly observed that to fault the deceased for not mentioning the appellant's name at the time that she was on fire would be to take an armchair approach.

It was also his submission, that, it is necessary to consider the totality of the evidence adduced and ascertain whether there was a break in the chain of events. He referred specifically to p26 of the record where the following exchange took place between the defence counsel and the witness, Tawanda Miti, during cross examination:

“Q. How many minutes lapsed from the time you heard the scream and the time that you then saw the now deceased coming from the tap direction?

A. Judging from the events, it could be less than a minute.”

I need to point out, that, in my reading of the judgment in R v Andrews [1987] 1 All ER 513, I was unable to locate the quotation cited by counsel for the respondent.

I make note, at this stage, that, counsel for the appellant's comment on this English authority was that its full content was not captured in the excerpt quoted by counsel for the respondent.

He submitted, that, the uncaptured aspects are;

(i) Firstly, that, if a statement is made after the event, it ordinarily falls outside spontaneity.

(ii) Secondly, if the statement is to be received in evidence there is a mandatory procedure to be followed in the Supreme Court of Judicature after which a preliminary ruling must be made by the judge. Thereafter, evidence of the statement can be given.

He likened the procedure to a trial within a trial in which the court must deal with and answer what he referred to as the recurring question: “At what stage did this end?”

In casu, so he submitted, because the statement was said after the deceased had seen a third party, there are dangers that the deceased had had time for reflection.

In my reading of R v Andrews [1987] 1 All ER 513, I was unable to locate the part of the report that specifically stipulated or referred to the procedure that he referred to and which he likened to the procedure of a trial within a trial (if I understood his submission correctly).

The facts in R v Andrews [1987] 1 All ER 513, as summarised in the headnote, are as follows:

“The appellant and another man knocked on the door of the victim's flat and when the victim opened it the appellant stabbed him in the chest and stomach with a knife and the two men then robbed the flat. The victim was found some minutes later. The police and they arrived very soon after. The victim, who was seriously wounded, told the police that he had been attacked by two men, gave the name of the appellant and the name and address of the other before becoming unconscious. He was then taken to hospital where he died two months later. At the trial of the appellant, for murder, the Crown sought to have the victim's statement to the police admitted in evidence. The trial judge ruled the statement was admissible. The appellant was convicted of manslaughter. He appealed to the Court of Appeal, contending that the victim's statement was inadmissible under the rule against the admission of hearsay evidence. The appeal was dismissed and the appellant appealed to the House of Lords.

Held – Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the res gestae, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim's statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim's mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion.

However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim's statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence. The appeal would accordingly be dismissed….,. Ratten v R [1971] 3 All ER 801 applied. R v Beddington (1879) 14 Cox CC 341 overruled.”…,.

I however found the following useful exposition by LORD WILBERFORCE in Ratten v R [1971] 3 All ER 801…, (a case cited by LORD ACKNER in his speech):

“The person testifying to the words used is liable to cross-examination: the accused person…, can give his own account, if different. There is no such difference in kind or substance between what was said and evidence of what was done (for example, between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction or fabrication, where it exists, is, on the other hand, an entirely valid reason for exclusion, and is probably the real test which judges in fact apply.

In their Lordships opinion, this should be recognised and applied directly as the relevant test: the test should not be the uncertain one, whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters, as the time which elapses between the events, and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria.

As regards statements made after the event, it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must, in principle, be true of statements made before the event. The test should not be the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But, if the drama leading up to the climax has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

The expression 'res gestae' may conveniently sum up these criteria, but, the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges rulings.”…,.

His Lordship also referred to the case of O'Hara v Central SMT Co 1941 SC 363, where, at p381 the Lord President (LORD NORMAND) said that “there must be close association: the words should be, at least, de recenti and not after an interval which would allow time for reflection and concocting a story.” He further quoted LORD FLEMING, who, at p386, said:

“Obviously, statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth.”…,.

He further pertinently states, at p808f-g:

“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”…,.

And, at p809b:

“Facts differ so greatly that it is impossible to lay down any precise general rule: it is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but, whether this is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree that, amongst other things, he may take the statement itself into account.”…,.

Finally, at p808d, he stated as follows:

“…,. In an earlier case in the High Court (Brown v R (1913) 17 CLR 570) where evidence was excluded, ISAACS and POWERS JJ, in their joint judgment (at 597), put the exclusion on the ground that it was a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main narration but arising as an independent and additional transaction.”…,.

In Principles of Evidence, 4ed (Juta) the learned authors, SCHWIKKARD and Van DER MERWE, under the heading “Res Gestae Statements” state that the phrase res gestae does not lend itself to any meaningful translation but that the phrase has developed a meaning in the law of evidence and is succinctly stated by CHOO (In Evidence (2012) 292) as follows:

“Evidence of facts may be admissible as part of the res gestae if these facts are so closely connected in time, place, and circumstances with some transaction which is at issue that they can be said to form part of that transaction.”

Under the subheading “Spontaneous Statements” the learned authors state, that, the reasoning behind the admission of spontaneous statements was that despite their hearsay nature, they are the product of an instinctive response and therefore less likely to be an invention or deliberate distortion. Furthermore, for the statement to be regarded as spontaneous it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the “event” dominated the mind of the declarant at the time of uttering the statement.

The learned authors further refer to the case of S v Tuge 1966 (4) SA 565 (A) wherein:

“[T]he court held that the following conditions needed to exist for a res gestae statement to be admitted into evidence:

(a) 'The original speaker must be shown to be unavailable as a witness';

(b) 'There must have been an occurrence which produced a stress of nervous excitement';

(c) 'The statement must have been made whilst the stress was still 'so operative on the speaker that his reflective powers may be assumed to have been in abeyance';

(d) 'The statement must not amount to a reconstruction of a past event.'”

Against the above backdrop of the position of the law relating to res gestae, I am unable to find fault with the manner in which the court a quo dealt with the issue of res gestae when it stated as follows:

“Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation, that, the cause of the fiasco was the accused. To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach. The deceased named the accused at the first opportune time after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.”

As with any other matter, each case must be decided on its own merits.

In casu, on a view of the evidence adduced before the trial court, and on a consideration of the manner in which the events unfolded, as well as the time frame within which it all happened, the court a quo cannot be faulted when it stated that:

“(I)t cannot be said that there was no spontaneity in the exclamation.”

As commented by LORD WILBERFORCE, at p806h-j:

“The reason why this is so (that is the application of different standards to the admissibility of the hearsay statement) is that concentration tends to be focused on the opaque or at least imprecise Latin phrase rather than on the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been the victim of assault or accident.”

As to the actual words used by the deceased, the court a quo cannot be faulted for believing the State witnesses.

The appellant did not dispute the evidence of the State witnesses as to what was uttered whilst the witnesses were still in their room. He would naturally not have been able to challenge the witnesses as his evidence was that he could not make out what the deceased was saying as she was screaming. The witnesses said that they were awoken by the deceased's screaming out: “oh mother, I am dying!” as well as calling out to the first witness by the deceased.

Further, the appellant did not dispute that the deceased uttered the words attributed to her by the witnesses after she came back from the tap at the back of the rooms and soon after the fire on her had been extinguished.

The deceased had burn injuries, and, as a result, her undergarment was sticking onto her body.

It is at that stage in the unfolding drama that the deceased said that the appellant had poured paraffin on her and set her alight and that he had the match box on him.

As it turned out, the box of matches was recovered from the appellant when he was subjected to a bodily search by the police - albeit he had a different explanation for his possession of it.

The deceased also asked why the appellant had not also poured paraffin on himself as he had said that he wanted both of them to die.

According to Nyasha Tsopotsa, she also said to the appellant that he should finish her off as he had been tormenting or ill-treating her for a long time.

There is another consideration that buttresses the court a quo's assessment of the evidence that was placed before it.

Notably, it was the appellant's stance, that, all that the deceased said in the presence of the State witnesses were all lies.

By implication, the appellant's contention was that the deceased deliberately concocted a false story to his disadvantage.

It was thus the defence's argument that the said utterances ought not to have been accepted or admitted as part of the res gestae.

On this aspect, the trial court dispelled the risk of concoction on the view, that, to hold otherwise would be to adopt or take an armchair approach.

I find no misdirection by the court a quo in this regard on a view of the evidence that was placed before it.

The citation, by the defence, of the case of Thompson v Trevanion (1693) Skin 402 ER 179 does not, in my view, establish any misdirection by the trial court in this regard. I say so for the reason, as already stated earlier, that, it is trite that each case must be determined on its own merits.

In the appellant's heads of argument the following statement by HOLT CJ, in the cited case, is quoted:

“What the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage, might be given in evidence.”

The court was alive to the fact that it was dealing with circumstantial evidence, there being no independent witness to testify as to how the deceased ended up in flames.

It rightly drew the applicable legal principles as espoused in R v Blom 1939 AD 188 and followed in Zacharia Amos Simango v S SC42-14; Abraham Mbovora v S SC75-14.

The two cardinal rules on circumstantial evidence have been stated to be:

“1. The inference to be drawn must be consistent with all the proven facts.

2. The proven facts should be such that they exclude every possible inference from them save the one to be drawn.”

The court isolated the issue that needed to be answered by the circumstantial evidence, viz: “whether or not the deceased poured paraffin upon and burnt herself or it was the accused who set her alight after pouring paraffin on her.”

On the evidence that was placed before the trial court, there are certain baseline facts that stand out.

The appellant was the only person with the deceased in her room when she called out the first witness name and screamed. The deceased did not call for assistance from the appellant, whether on the appellant's evidence or on the evidence of the State witnesses. She called out to Tawanda Miti. The appellant himself, a frequent visitor to the premises, according to the evidence of the State witnesses, did not call out for help from the deceased's neighbours who he must have known to be in their own rooms. Thereafter, the deceased pointed to the appellant as the person who had doused her with paraffin and set her on fire.

Another notable aspect is that the appellant said that the deceased got dressed in a skirt and blouse when he indicated that he wanted to have a discussion with her. But, when the deceased was seen by her neighbours, when they reacted to her distress call, she was observed wearing only a petticoat that was now stuck to her body due to the burning.

There was no explanation by the appellant as to how the skirt that he found burning on the floor after he came back to the room had got there.

In the circumstances, I find no misdirection on the part of the court a quo when it found as follows:

“…,. The complainant was heard screaming and calling out to neighbours. She did not call out to the accused person. If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to and in her presence to assist her or come to her aide (sic). It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.”

The court a quo correctly noted, that, the appellant came to visit the deceased in the dead of night and that he had a grievance that he wanted to raise with her about her reported behaviour. It was the trial court's finding that the appellant must have been incensed and that his interrogation of the deceased was unlikely to have been amicable as he wanted the court to believe. The trial court found the appellant's narration of events, as regards the deceased's reaction to his questions, to be “illogical and improbable to a point that it can safely be said not to have happened.” The court found it to be improbable, that, after she was asked as to why she went to bars in the absence of the appellant, she responded by pouring paraffin on herself and setting herself alight.

I find no misdirection in this finding by the court a quo.

In assessing the sufficiency of the circumstantial evidence that was placed before it, the court a quo drew guidance from, firstly, the cases of R v Sibanda & Others 1965 (4) SA 241 (R.A.) where…, BEADLE CJ, dealing with circumstantial evidence, stated as follows:

“The degree of certainty with which the individual facts must be proved, in criminal cases, must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

It also referred to S v Chabalala 2003 (1) SACR 134 (SCA) in which, at paragraph 15, the following is stated:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination, and, a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”…,.

The findings made by the court a quo must be viewed against the trite position at law, that, as the trial court, it had the advantage of seeing and hearing the witnesses as they testified to the events of the night in question. That is an advantage that an Appellate Court does not have. An Appellate Court hears an appeal on the record and cannot disregard findings made a quo unless a reading of the record patently does not support such findings.

There is no patent misdirection in the findings of the court a quo discernible on a reading of the record.

The court a quo's finding, on the appellant's demeanour as a witness, has an important bearing on the determination of his guilt by the court, particularly in circumstances where the court had found that the State had established a prima facie case against him and that he had to be put on his defence.

Commenting on the appellant's demeanour, the court a quo stated:

“…, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife, as per his testimony.”

The accused's demeanour was adjudged not to be impressive.

This finding, on the appellant's demeanour, by the court a quo, is supported and borne out by a reading of the appellant's confirmed Warned and Cautioned Statement, his Defence Outline, and his testimony in court both in chief and in cross examination.

In the warned and cautioned statement, he said, that, after she had set herself alight, the deceased embraced him and he opened the door while she was still embracing him. When he opened the door, the fire “burned heavily” and she ran to the tap where “she poured some water on her” and he followed her and helped her to extinguish the fire.

In his Defence Outline, he said that after setting herself on fire the deceased “sought to embrace him intending to cause harm to him but he managed to slip away going out of the room.” He said that he also assisted the deceased to put out the fire by pouring some water on her at the water tap.

In his evidence before the court a quo, he said that the deceased wanted to grab him by the neck but she missed and grabbed hold of the upper arm of one hand. He further stated that she got “hold of me in an indication that she did not want to let me go. It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger; that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tap so that I put out the fire. She get hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head and all the body.”

The discrepancies in the extra-curial statement, the Defence Outline, and the evidence in court, in the respect highlighted above, cannot be missed. Significantly, the unexplained discrepancies relate to a stage in the unfolding events that only he could give clear evidence on.

He did not.

In the circumstances, I find no misdirection or error in the court a quo's assessment of the appellant's demeanour.

The issue that has been raised, in relation to the rejection of the appellant's defence by the court a quo must not be considered in isolation.

The court was obliged, as it rightly noted, to consider the totality of the evidence before it. Its reliance on the case of S v Isolano 1985 (2) ZLR 62 (SC), in this regard, cannot be faulted. Therein, LORD DENNING was quoted when he stated as follows in Miller v Minister of Pensions [1947] All ER 372 (KB):

“…, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty but it must carry a high degree of probability.

Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt - but nothing short of this will suffice.”

The court a quo found, that, on a consideration of the evidence before it, and having derived guidance from the authorities, the State had proved the appellant's guilt beyond reasonable doubt and it therefore convicted him of murder with constructive intent.

In the absence of misdirection by the trial court, there is no basis for this court to interfere with the conviction.

No submissions having been made in relation to sentence, this will be taken as a concession that the appeal against sentence has no merit. No basis has been established for interference with the same.

Consequently, it is thus found that there is no merit in this appeal. It is accordingly ordered as follows:

The appeal be and is hereby dismissed in its entirety.

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

The appellant and another, who is not a party to this appeal, appeared before the High Court sitting at Harare, charged with one count of murder.

After a contested trial, they were found guilty of murder with actual intent and were sentenced each to 25 years imprisonment.

It was the finding of the court a quo, that, on 11 March 2011, they had unlawfully and intentionally caused the death of one Alneshto Bayeta by pushing him down a steep slope into Marongora Game Park which is infested with wild animals.

This is an appeal against both the conviction and the sentence.

Background Facts

The appellant, then aged 20, and his co-accused, not much older, were working in Chirundu, digging trenches for a telecommunications corporation. When the contract ended, the two survived on odd jobs for some time thereafter. They soon ran out of money and planned to steal a vehicle.

On 11 March 2011, they approached the deceased, who was working as a taxi driver, driving a vehicle belonging to one Leonard Mhundwa, and purported to hire the vehicle to Chirundu Heights. This was around 9:00pm.

On the way to Chirundu Heights, they robbed the deceased of the vehicle and tied him up before placing him in the back of the vehicle. They then drove along the Harare-Chirundu Road, and, at a certain spot where the Marongora Game Park slopes steeply from the road, stopped the vehicle and there left the deceased.

When the deceased did not return with the vehicle at the appointed time, Leonard Mhundwa, the owner of the vehicle, lodged a report with the police. Investigations led to the arrest of the appellant and his co-accused who were found in possession of the motor vehicle.

After the arrest of the appellant and his co-accused, a search for the body of the deceased was conducted around the spot at which the appellant and his co-accused had left the deceased. The search was conducted with the assistance of armed Rangers from the Department of Parks and Wildlife who know the area to be infested with wild animals.

Some 20 metres down the slope, a spoor showing that something had been dragged along was observed going down the slope. Along the spoor, torn and blood-stained clothes and sandals belonging to the deceased were recovered.

The body of the deceased was not.

Presuming the death of the deceased, at the time of the trial, as the only reasonable inference that could be drawn from the facts, the court a quo found the appellant and his co-accused guilty of murder and sentenced them as stated above.

The Appeal

Aggrieved by the conviction and the sentence, the appellant noted this appeal raising five grounds of appeal.

In the first three grounds, he challenged the admissibility into evidence of a warned and cautioned statement that he made to the police upon his arrest.

It was his argument that the court a quo erred in admitting the statement into evidence in the face of clear evidence that he had not made the statement but that he was given the statement by the police to sign.

He further argued, that, the statement was irregular as it was “re-taken” on the orders of the confirming court after that court had declined to confirm the first statement.

In his view, apart from the confession in the statement, there was no evidence implicating him in the commission of the crime.

As against the conviction proper, the appellant challenged the sufficiency of the evidence against him arguing that the court a quo drew improper inferences that he had committed the crime.

Finally, he argued that the sentence imposed upon him was severe and induced a sense of shock.

From the above grounds, three issues arise for determination in this appeal. These are;

(i) Firstly, whether the appellant's warned and cautioned statement was correctly admitted into evidence;

(ii) Secondly, whether the appellant was properly convicted of murder; and

(iii) Finally, whether the sentence imposed on the appellant is severe and induces a sense of shock....,.

Whether the confirmed warned and cautioned statement by the appellant was admissible evidence

The appellant and his co-accused were arrested on 1 April 2011. Four days later, on 5 April 2011, the investigating officer recorded a statement from the appellant after duly warning and cautioning him on his rights.

On 12 April 2011, the appellant was taken before a magistrate for the confirmation of the statement. He successfully challenged the confirmation of the statement on the basis that the statement was not his and that he had not made it voluntarily.

The confirming magistrate correctly declined to confirm the statement.

However, without citing any law for his decision, the magistrate thereafter ordered the appellant and the investigating officer to record a second statement.

The second statement was recorded the following day and was confirmed on the same date.

In challenging the second statement during the trial a quo, the appellant alleged, that, he had been threatened by the investigating officer with assault if the second statement was once again not confirmed. He thus did not inform the confirming magistrate that the statement was not his but that it was merely presented to him for signing.

It appears that the court a quo was not quite clear on the steps to take in dealing with the challenge.

The admissibility of the statement was challenged in the Defence Outline and orally in court when the prosecution tendered the statement with the other exhibits at the commencement of the trial.

In a terse, but correct ruling, the court a quo provisionally admitted the statement into evidence with the other exhibits and placed an onus on the appellant to rebut the admissibility of the statement.

The court was correct in provisionally admitting the statement into evidence, as, on its face, there was nothing irregular.

During the State case, the investigating officer gave evidence on how he had recorded the statements from the appellant, and, during his evidence-in-chief, the appellant in turn gave evidence on how the statement was taken.

He maintained his stance that the statement was not his as certain portions of it were insertions by the police.

In the main judgment, the court a quo held, that, the appellant, through his counsel, had withdrawn his objection to the admission of the statement into evidence.

This was contrary to the evidence on record.

And, to confirm the uncertainty that the court a quo appears to have been operating under regarding what to do with the challenge to the statements, it initially held that it was unnecessary for it to establish whether or not the second statement had been voluntarily made by the appellant as the appellant had withdrawn his objection to the admission of the statement.

Moments later, it observed that:

“Although the warned and cautioned statements were produced by consent after the accused had withdrawn their objections, it is in my view necessary to deal with the accused's evidence of the alleged duress because of the continued reference to the statements by the accused persons. Mr Mushonga submitted that the accused were not challenging the confirmation of the statements per se but the decision by the magistrate to confirm a new set of statements.”

The court then proceeded to find that the appellant had not been unduly influenced in making the statement.

The law on the admissibility of confirmed statements is codified. It is settled.

Section 256(2) of the Criminal Evidence Act [Chapter 9:07] provides that a confession or statement made by an accused person and confirmed before a magistrate following the procedures laid down in section 113(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] is admissible in evidence before any court upon its mere production by the prosecutor without further proof.

However, the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto.

In a long line of decided cases, the steps that a court must take where an accused person challenges a confirmed warned and cautioned statement is settled. It is this:

Where the accused raises a potentially sustainable challenge to the propriety of the confirmation proceedings, the court is obliged to determine the validity of that challenge as a separate issue of fact.

The onus is on the State to prove the absence of any irregularity.

If the State discharges the onus, the statement is provisionally admissible and the onus shifts to the accused to rebut the presumption that the statement is admissible.

The onus of proof, on the accused, is to prove, on a balance of probabilities, that, the statements are inadmissible.

If the accused's challenge is upheld, the onus remains on the State to prove, beyond a reasonable doubt, that the accused made the statement and that he made it freely and voluntarily: see S v Woods 1993 (2) ZLR 258 (SC); S v Slatter and Others 1983 (2) ZLR 144; S v Manukwa and Others 1982 ZLR 30 (SC); and S v Gwaze & Anor 1978 RLR 13…,..

Against the yardstick set by the above authorities, the court a quo erred in many respects which I will not fully go into.

Primarily, as this was its ratio decidendi, the court a quo erred in holding that the appellant had withdrawn his challenge to the statement.

The record indicates that the appellant consistently denied having made the statement which he alleged was a confession to the offence.

The court a quo was aware, that, right up to the end, the appellant challenged the statement attributed to him. He thus “continued to make reference” to the irregularity of the statements throughout the trial as rightfully observed by the court a quo in its judgment.

In the absence of consent to the admission of the statement, the court a quo had to make a finding of fact on whether or not the statement was admissible evidence.

This it did not do.

I must make the point, that, contrary to the finding by the court a quo, that the confirming magistrate did not err in directing the police to record a statement from the appellant afresh, the recording of the second statement from the appellant was irregular and must be set aside.

The court a quo was of the view, that, since the appellant had not advanced any law that precluded the recording of the statements afresh, the order by the magistrate was proper.

Such a law is easy to find and ought to have presented itself to the court a quo.

The recording of extra curial statements from the accused is part of the investigation of the alleged crime. It is an exercise that falls wholly within the domain and discretion of the police. They, and not the court, elect whether or not to record a statement from the accused.

In our legal system, which is adversarial, and the magistrate or judge is a neutral umpire, the magistrate, or judge, has no role or place in the investigation of matters that come before the court.

Therefore, he or she cannot direct the investigation of the alleged crime at any stage.

It matters not that he or she will not tell the accused person on what to say in the statement as was contended by the court a quo. The bottom line is that the court has no power, whatsoever, to direct the police to record a statement from the accused person at any stage of the investigations or of the trial.

It is thus over-reaching of grave proportions for confirming magistrates to direct the police to record second statements from accused persons after declining to confirm the first statement.

Even if the statement that is eventually recorded from the accused is exculpatory, the bottom line is that a directive by the court, to the police, to record a statement from the accused is grossly irregular and so is the statement that is recorded pursuant to such a directive.

I note, in passing, and for the benefit of the Chief Magistrate, that, the directive to the police by the confirming magistrate in casu appears similar to one that was issued by the confirming magistrate in Mangoma v S SC36-20 in which this Court also set aside the statement.

The police may feel obliged to comply with such directives which not only have no basis in law but may violate the rights of an accused person to a fair trial.

I do not think that it is necessary to burden this judgment with a discussion on whether or not there is a law that precludes the police from recording a second set of statements from an accused person after the confirmation of the first has been declined.

It however presents itself clearly to me that the recording of a statement from an accused person by the police, whether first or subsequent, at the instance of, and in fulfilment of a directive of the court, is grossly irregular.

It is therefore my finding that the court a quo erred in admitting into evidence the statement by the appellant on the basis that it was adduced by consent.

There was no such consent.

Had the court a quo followed the approach laid out in the authorities cited above, it would have found, as I do, that the recording of the statement was irregular as it was at the instance of the court.

The confirmed statement by the appellant, dated 13 March 2011, must be struck off the record, and, any reference to its contents be expunged from the evidence.

The finding that I make above must apply with equal force to the statement made by the appellant's co-accused on the same date. This is so notwithstanding that he is not a party to this appeal. His statement was recorded in similar irregular circumstances.

SC75-14 : ABRAHAM MBOVORA vs THE STATE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

On 5 October 2006, the High Court found the appellant guilty of the murder of Johannes Mapfumo Majoni with actual intent to kill him. The court a quo found no extenuating circumstances. It therefore sentenced the appellant to death.

This is an automatic appeal against both conviction and sentence.

It was the State case that the appellant shot and killed the deceased. There was no direct evidence against the appellant, the State relying on circumstantial evidence.

The undisputed facts are that in the afternoon of 14 April 2005, a man armed with a firearm arrived at Chinyuni Business Centre in Chirumhanzu. His head was covered with a black woollen hat which covered the forehead down to the eyebrows. A scarf covered his face from the nose down to the mouth.

All that could be seen were the armed man's eyes.

He force-marched two men, at gunpoint, into a room at the premises (hereafter referred to as the first room). He ordered the two men, as well as a lady who was in that room, to lie on the floor. He demanded money and was told that it was in the next room.

He left the room, closing the door behind him, and stormed into the next room (hereafter referred to as the second room) where he fired a shot and demanded money.

As one of the frightened occupants was putting the money in a plastic bag, as ordered, one of the men who had been force marched into, and was left lying on the floor in the first room, bolted out of the room and went outside. The escaped man proceeded to close the gate or screen to the premises with a view to preventing the armed man from escaping.

As he was doing so, the armed man also ran out from the second room leaving the money behind.

The armed man went towards the gate and shot the escapee, who is the now deceased, as he was closing the gate. The armed man left the scene.

It is the State case that the armed man was in fact the appellant.

The appellant denied having shot and killed the deceased, maintaining that he was not in Zimbabwe at the time of the commission of the offence. He claimed that he had been in South Africa since 2001 until his return to Zimbabwe on 18 April 2005 - some four (4) days after the commission of the offence.

He further claimed, that, the CZ pistol found in his possession at the time of his arrest was not and could not have been the murder weapon as he had acquired it in South Africa and had only brought it to Zimbabwe on his return on 18 April 2005.

The appellant also denied having made any indications to the police at the scene of the offence.

It was contended, on his behalf, that, the State had failed to prove the allegation against the appellant beyond reasonable doubt.

It was further contended, that, the trial court ought to have acquitted him as the evidence adduced by the State failed to place the appellant at the specific area at which, and within the specific time that the offence was committed.

The respondent, on the other hand, contended, that, the appellant's conviction was proper in the light of the evidence led.

It was contended, that, the circumstantial evidence relied on by the trial court passed the test set out in R v Blom 1939 AD 188 thereby justifying the conviction despite the absence of direct evidence of the appellant committing the offence.

None of the State witnesses who witnessed the murder saw the assailant's face or identified him, as his face was covered by a woollen hat and red scarf that he was wearing at the time of the shooting.

John Taziveyi Mabhundu, one of the State witnesses, said that as the events leading to the fatal shooting were unfolding he was not able to identify the armed man. He was, however, present when the appellant was making indications to the police.

Although due to the distance separating them he could not hear what the appellant was saying as he made the indications, the indications made by the appellant tallied with the witness own observations of what happened on 14 April 2005 and thus also tallied with his own indications which he subsequently made regarding the events of the fateful day.

He observed that the appellant was sufficiently relaxed as he made his indications such that he would chat with local people who had gathered to witness the occurrence.

The police reprimanded him for his conduct.

The appellant confirmed this reprimand.

The witness stated that the appellant made indications before State witnesses, himself included, also made indications at the scene as to the pertinent events leading to the deceased's fatal shooting.

After the holding of a trial within a trial triggered by the appellant's denial that he had made any indications, the trial court correctly rejected his denial and ruled the recorded indications admissible in evidence.

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

“Much ado about nothing.”; 'Storm in a tea cup.'

One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.

An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.

Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'

The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.

I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.

The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.

Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.

Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.

Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.

The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.

The issue, in other words, is dealt with administratively.

Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.

Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.

The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.

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Law Portal
Zimbabwe

Court Management re: Postponement of Proceedings iro Trial Within a Trial and the Exercise of Summary Jurisdiction

HH15-10 : THE STATE vs ROY BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

HHH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC75-14 : ABRAHAM MBOVORA vs THE STATE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

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Law Portal Zimbabwe

Court Management re: Postponement of Proceedings iro Trial Within a Trial and the Exercise of Summary Jurisdiction

HH15-10 : THE STATE vs ROY BENNNET Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE Ruled By: CHITAPI J

HHH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE Ruled By: HUNGWE J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC75-14 : ABRAHAM MBOVORA vs THE STATE Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

HH220-16 : THE STATE vs GEORGE LOVELL Ruled By: MUSAKWA J

HH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

Categories

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Law Portal
Zimbabwe

HH15-10 : THE STATE vs ROY BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

HHH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC75-14 : ABRAHAM MBOVORA vs THE STATE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J