Criminal
Appeal
HUNGWE
J:
The appellant was a Clerk of Court at Magistrates Court, Karoi, when
he was convicted of defeating or obstructing the course of justice.
He was sentenced to 24 months imprisonment of which 6 months were
suspended for four years on conditions of good behavior.
He
appeals against both his conviction and sentence.
The
record shows that two notices of appeal were filed within the
stipulated period within which to file the notice, one by his legal
practitioners and another by the appellant, personally.
As
he has since been granted leave to prosecute his appeal in person,
nothing should really turn on the quality of the papers filed since
the papers substantially comply with the rules of this court.
I
proceed to consider his appeal on the basis of the notice filed by
counsel.
The
notice and grounds of appeal consists of some 40 paragraphs spread
over seven pages. The grounds boil down to an attack on the basis
that the court erred in convicting on the basis of circumstantial
evidence. There is an enumeration of various particulars of alleged
error or misdirection set out as if in argument.
The
facts upon which he was convicted are that sometime in March 2005,
the appellant was arrested on charges of theft of a court record. On
18 March 2005 he was taken to the Magistrates Court for the purposes
of carrying out a hand-over-take-over of his office and his duties as
Clerk of Court for the period he was on suspension. The appellant was
accompanied by a police constable. The two sat on the bench. He asked
the police escort if he could visit the toilet. Among other places he
visited, he went into the strong-room where certain court records and
exhibits are kept.
Witnesses
saw him.
They
knew that his conditions of suspension did not permit him to be there
alone. He was asked to leave.
Another
court official used the same toilet which the appellant had been to
and flushed it after use. It was blocked. A further investigation of
the cause of the blockage revealed that a court record had been torn
and flushed down the system.
It
was exh 1 during trial.
Suspicion
of this foul deed fell on the appellant. The reason for this is that
the appellant at the time was under investigation for theft of a
court record. It is also common cause that as Clerk of Court, he was
the custodian of court records. He had the keys to the Clerk of
Court's office. He was responsible for receipting fines and bail
money. He was the custodian of court exhibits, including passports
surrendered to court in terms set out by the court granting bail to a
suspect.
This
particular record, exh 1, showed that the suspect, one Michael
Togaraseyi Muzhewe had been granted bail. The conditions attaching to
the grant of bail were that he resided at an address in Zengeza 2,
Chitungwiza; that he deposits a stated amount of money as bail; that
he surrenders his passport to the Clerk of Court, Karoi; and that he
reports once every week at St Mary's police station.
It
is common cause that the appellant did not enter Michael Togaraseyi
Muzhewe's passport in the appropriate register as he was duty bound
to do. The said Muzhewe had abandoned his reporting conditions and
his Zengeza 2 residence. He was, by the time of this investigation,
employed and resident in South Africa.
In
a well reasoned judgment the learned trial magistrate found the above
facts to have been proved. He recognised that as there was no direct
evidence that the appellant was seen destroying the court record and
flushing it down the toilet; a conviction could only be founded on
circumstantial evidence. He set out a clear understanding of the
issues at stake regarding circumstantial evidence. He then concluded
that the evidence was strong enough for a safe conviction.
The
appellant, for the reasons he gives, disagrees with this finding and
urges this court to set aside the conviction as he argues that the
matter was not proved beyond suspicion.
The
law regarding circumstantial evidence is well-settled. When a case
rests upon circumstantial evidence, such evidence must satisfy the
following tests:
(1)
The circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
(2)
Those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused;
(3)
The circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and no-one
else; and
(4)
The circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation by any other hypothesis than
that of guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent
with his innocence.
See
S
v
Shoniwa
1987 (1) 215 (SC) and the cases therein cited.
In
the light of the legal position about the circumstantial evidence,
this court has to examine whether the circumstantial evidence in the
instant case satisfies the requirements of law.
Circumstantial
evidence can be contrasted with direct evidence.
Direct
evidence is what a witness says he or she saw or heard or did. It may
be a witness saying that he or she saw an accused person do the act
which the State says constitutes the alleged crime charged. It may be
a video recording showing an accused person committing an act that
the State relies upon as part of its case or it can be evidence from
a witness that he or she heard an accused person admit to committing
the crime.
In
a direct evidence case, if the evidence is accepted beyond reasonable
doubt, it is capable of proving the guilt of the accused.
In
a circumstantial case, the State lacks direct evidence of that kind.
This
does not mean that a circumstantial case is for that reason weaker
than a case based upon direct evidence. Some direct evidence can be
of very dubious quality. For example, direct evidence from a witness
identifying an accused person as being the offender can be very
unreliable because identification evidence can be honest but
mistaken.
But
in a circumstantial case no individual fact can prove the guilt of
the accused.
Where
the State's case depends either wholly or in part on circumstantial
evidence, then the court is asked to reason in a staged approach.
The
State first asks the court to find certain basic facts established by
the evidence. Those facts do not have to be proved beyond reasonable
doubt. Taken by themselves they cannot prove the guilt of the
accused. The court is then asked to infer or conclude from a
combination of those established facts that a further fact or facts
existed. Ultimately, the State asks the court to find, based upon the
basic facts, that an accused person is guilty of the offence charged.
A
case based on circumstantial evidence may be just as convincing and
reliable as a case based upon direct evidence. This will depend upon
the number and nature of the basic facts relied upon by the State
when considered as a whole (not individually or in isolation). And it
will depend upon whether all of the evidence leads to an unavoidable
conclusion that the State has established the guilt of the accused.
It
is important that the court approaches a circumstantial case by
considering and weighing, as a whole, all the facts found established
by the evidence. It is wrong to consider any particular fact in
isolation and ask whether that fact proves the guilt of the accused,
or whether there is any explanation for that particular fact or
circumstance which is inconsistent with the accused's guilt.
The
correct approach is first to determine what facts are established by
the evidence. The court must then consider all of those facts
together as a whole and ask whether it can be concluded, from those
facts, that the accused is guilty of the offence charged. If such a
conclusion does not reasonably arise, then the State's
circumstantial case fails because there is no proof of guilt beyond
reasonable doubt.
But
if the court finds that such a conclusion is a reasonable one to draw
based upon a combination of those established facts then, before it
can convict the accused, it must determine whether there is any other
reasonable conclusion arising from those facts that is inconsistent
with the conclusion the State says is established.
If
there is any other reasonable conclusion arising from those facts
that is inconsistent with the guilt of the accused, the
circumstantial case fails because there is no proof beyond reasonable
doubt of the accused's guilt.
Drawing
a conclusion from one set of established facts to find that another
fact is proved involves a logical and rational process of reasoning.
The court must not base its conclusion upon mere speculation,
conjecture or supposition.
As
pointed out by EBRAHIM JA in State
v
Masawi
1996 (2) ZLR 472 (SC) @ p525 F-G;
“This
is not a question of throwing any onus on the second appellant, but a
conclusion of guilt that a court is entitled to draw from the weight
of the circumstantial evidence adduced, if no explanation of such
evidence is forthcoming from the second appellant: R
v
Difford
1937 AD 370 at 373. Where circumstantial evidence leads inexorably to
a definite conclusion no direct evidence is necessary for their
probative value, save that things do not happen that way without
reason or explanation.”
The
appellant failed to explain why, for example, he entered the Clerk of
Court's office at a time when he was not authorized to do so since
he was on suspension on allegation relating to his duties there.
He
also could not give a reasonable explanation as to why he did not
receive Michael Togaraseyi Muzhewe's passport at the time he
received his bail deposit, as he was duty-bound to.
He
could not explain why, soon after he had visited the toilet, the
record in which the indiscretion regarding the passport was recovered
in the toilet system rather than where it should have been.
The
circumstantial evidence in the instant case may be broadly classified
into three parts;
(1)
The
oral evidence to prove that the appellant was under investigation for
theft of court records
He
was escorted by police to the court house for the purpose of
hand-over-take-over. He had the motive to conceal instances of
further breaches of security regarding court records of which he was
the custodian. If this particular record was discovered, it would
have provided further evidence of criminal conduct on his part; the
circumstances surrounding the bail conditions regarding one suspect
whose passport was not retained by his office when it should have
been.
(2)
The
recovered record in the case of Michael Togaraseyi Muzhewe
The
state of the recovered record shows that it was recovered soon after
it was flushed down the toilet. The appellant had visited the toilet
shortly before the record was recovered.
(3)
The evidence shows that of all those who had access to the
strong-room
Appellant
had a stronger motive, better access and closer connection to the
situation created by the failure to retain the passport of another
suspect than anyone else at this court. Only he knew what transpired
when bail was paid for Muzhewe without his passport being
surrendered. This information was within his special knowledge.
His
conduct on the day of the recovery of exhibit 1 tied him more closely
to all these events such that the only reasonable inference is one of
guilt of the appellant. These circumstances, taken cumulatively, do
not, in my view, admit of any other inference except the one which
was drawn.
In
all the circumstances of the case, I am satisfied that the court
correctly convicted the appellant. There is no merit in the appeal
and it is therefore dismissed in its entirety.
MAVANGIRA
J: agrees
Attorney-General's
Office,
respondent's legal practitioners
