MUSAKWA J: This is an application for bail pending appeal
following the applicant's conviction for attempted murder and unlawful
possession of a firearm. In respect of the attempted murder charge he was
sentenced to four years imprisonment of which one year was suspended for five
years on condition of good behaviour. In respect of the second count of
unlawful possession of a firearm he was sentenced to twelve months imprisonment
of which five months were suspended for five years on condition of good
behaviour.
This case in material respects demonstrates how not to
prosecute a case involving the discharge of a firearm. The first count arose
following the trailing of the complainant by unidentified persons in a Toyota
Harrier vehicle from the city centre to Christon bank. Having done his shopping
in the evening the complainant, almost intuitively drove away at high speed.
Nonetheless he noticed that two vehicles were trailing him one of which did not
persist. The Toyota Harrier did not relent.
Notwithstanding his passage through a toll gate the
complainant did not bother to report his suspicions. By then the Toyota Harrier
was not in sight. However when he turned right into Christon Bank area he
noticed the same vehicle trailing him. Notwithstanding the threats posed he
drove for some distance and then stopped in the middle of the road and switched
on the hazard lights. This of course did not deter the pursuers who soon
arrived. When the Toyota Harrier came abreast his vehicle the complainant
noticed the barrel of a firearm protruding and he took off. In the process his
vehicle was shot at three times. He explained that one bullet struck the rear
right passenger door and must have proceeded to lodge behind the driver's seat.
Another bullet struck the vehicle's boot. The third bullet struck the left tail
light. The complainant went and made a U-turn and returned to the scene. By
then the assailants had disappeared.
The complainant lodged a report at a local Police Base and
together with two Police officers, they proceeded to the scene of shooting.
Using illumination from the complainant's vehicle lights as well as a torch
they managed to retrieve three spent cartridges and two bullet heads. Of the
bullet heads one was in the vehicle boot whilst the other was amongst the
groceries. The complainant said it was lodged in a loaf of bread. Nonetheless,
these exhibits were subsequently submitted for ballistics examination. At that
stage they did not match any scene of crime.
The applicant and others were subsequently arrested. More
importantly, the applicant was arrested on implication by one Dreka Katena.
This was because of a spate of armed robberies which were committed within
Harare. The applicant was arrested whilst at his uncle's residence in
Mayambara, Seke. He was thereafter taken to his residence which was close by. A
search was conducted and during that search Police officers claimed to have
recovered a CZ pistol inscribed BSAP 423. The applicant through the spirited
defence of Mr Nyeperai contested this evidence. He challenged the production of
a page from the investigating officer's diary on which it was claimed he signed
acknowledgement of the recovery of the firearm. The applicant's contention was
that he was coerced through assaults. On the other hand the applicant's uncle
who also appended his signature and testified as a defence witness claimed he
signed in order to stop further assaults on the applicant. Despite these
objections the trial court ruled that the diary extract was admissible. Test
cases fired from the recovered pistol matched the spent cartridges recovered
from the Christon Bank scene.
The trial court highlighted a number of unsatisfactory
features in respect of the testimony of several of the sate witnesses. For
example, the complainant's statement regarding the accused persons stated that
he knew them by name. This was despite the fact that the statement was recorded
before the applicant and co-accused had been arrested. In addition, the
complainant had not identified any of his assailants. When the complainant was
quizzed on this aspect during cross-examination he conceded that the names had
been included by the Police officer who recorded his statement.
Then there was Constable Chikwasa who, in explaining
anomalies between his statement and oral evidence stated that his oral
testimony was more accurate than what he stated in his statement. He had in the
course of being cross-examined, chosen some aspects of his statement as being
accurate whilst disowning other portions. This was despite the fact that the
statement was written when events were still fresh.
The same doubts were raised in respect of Detective
Assistant Inspector Jachi's testimony. This was more poignant in respect of the
circumstances surrounding the applicant's arrest. This is because Police
officers claimed that the applicant had been arrested earlier than the deceased
Gerald Mugabe. The trial court did not find Detective Assistant Inspector
Jachi's contradictions on this aspect convincing. It also dismissed the
assertion that the applicant's uncle witnessed the recovery of the firearm.
The trial court also raised questions why the Police
officers would walk some 200 metres from the applicant's uncle's residence to
the applicant's residence. This was on account of the fact that they had a
vehicle and they were in the company of the applicant. It seemed the more
logical thing would have been to drive to the place. This then raised the
possibility that they wanted to raid the applicant. It raised the possibility
that the applicant had not indicated where to find Gerald Mugabe. It also meant
that Gerald Mugabe was arrested earlier than the applicant.
There was also what the trial court termed a late
disclosure by Detective Sergeant Maigeta whilst under cross-examination that
they recovered two firearms from the applicant. The court found this witness's
explanation incredible. It also noted the contradictions between this witness
and the complainant regarding the number of bullet heads that were recovered
from the shot vehicle.
The trial court also noted that Assistant Inspector Dube
conceded that in his ballistics examination, he did not come up with the
specific characteristics on which he based his conclusions regarding the
recovered cartridges, bullet heads and the CZ pistol. The trial court actually
stated that this made it difficult for it to appreciate how the witness came to
his conclusion.
Both MrNyeperai and MrMuchini expressed
divergent views on whether there were prospects of success on appeal. Mr Nyeperai
was of the firm view that once the trial court expressed doubts on the credibility
of the witnesses or sufficiency of the evidence, then it should have returned a
verdict of not guilty. He highlighted the various contradictions and shortfalls
in the testimony of the state witnesses and in particular highlighted that it
was not sufficient for the ballistics expert to simply state his conclusions
without illustrating and producing the actual exhibits. Mr Nyeperai
cited the cases of R vSibanda 1963 (4) SA 182 and S v
Nyamayaro 1967 RLR 228.
Whilst acknowledging these shortfalls Mr Muchini
was adamant that the trial court was correct in convicting the applicant. He
submitted that if the applicant was found in possession of a firearm within a
short period of it having been used in the Christon Bank shooting, then the
inference is that he is the one who was involved in the shooting. He also cited
S vWilliams 1981 (1) ZLR 1170 [ZAD]. in his submission that
even if there may be prospects of success on appeal in respect of the attempted
murder charge, the court may still deny the applicant bail on account of the
nature of the charges.
In stating the law on bail pending appeal FIELDSEND CJ had
this to say in S v Williams supra at 1172-1173:
“Different considerations do, of course, arise in granting
bail after conviction from those relevant in the granting of bail pending
trail. On the authorities that I have been able to find it seems that it is
putting it too highly to say that before bail can be granted to an applicant on
appeal against conviction there must always be a reasonable prospect of success
on appeal. On the other hand even where there is a reasonable prospect of
success on appeal bail may be refused in serious cases notwithstanding that
there is little danger of an applicant absconding. Such cases as R v Milne
and Erleigh (4) 1950 (4) SA 601 ( W) and R v Mthembu
1961 (3) SDA 468 (D) stress the discretion that lies with the Judge and
indicate that the proper approach should be towards allowing liberty to persons
where that can be done without any danger to the administration of justice. In
my view, to apply this test properly it is necessary to put in the balance both
the likelihood of the applicant absconding and the prospects of success.
Clearly, the two factors are inter-connected because the less likely the
prospects of success are the more inducement there is on an applicant to
abscond. In every case where bail after conviction is sought the onus is on the
applicant to show why justice requires that he should be granted bail.”
Mr Muchini also submitted that the court should
consider the overall cumulative nature of the evidence led as opposed to
particular aspects of the evidence that were singled out by Mr Nyeperai.
Such an approach would leave no doubt that the applicant committed the
offences.
Notwithstanding Mr Muchini's submission, the court
will have to consider the individual aspects of evidence highlighted by Mr Nyeperai.
This is because ballistics evidence is the only evidence that linked the
applicant to the attempted murder charge.
In R vNyamayaro supra the appellant was convicted
of housebreaking with intent to steal and theft. The offence had been committed
by breaching a wire mesh screen through cutting it with pliers. The appellant
was linked to the crime through a pair of pliers that was found in his car some
nineteen days later. A comparison of the mesh screen that had been cut matched
the pair of pliers.
BEADLE CJ held that 'tool' mark evidence should be treated
in the same manner as expert evidence on handwriting. To this I would add
evidence on fingerprints. Citing the earlier decision in R vSibanda
(2) 1963 R & N 601 BEADLE CJ further stated that before a court relies on
'tool' mark evidence on its own, it must be satisfied that it is safe in the
circumstances to convict.
In that case the expert who testified on the tool marks
produced two photographs which depicted the comparisons by way of highlighting
the points of similarity. BEADLE CJ further referred to GREENBERG JA's remarks
in Annama v Chetty and Others (5) 1946 A.D. 142 in which at 155 the following
was said about the expert witness on tool marks:
“His function is to point out similarities or differences
in two or more specimens of handwriting and the court is entitled to accept his
opinion that these similarities or differences exist, but once it has seen for
itself the factors to which the expert draws attention, it may accept his
opinion in regard to the significance of these factors.”
I have gone to some length in analysing the evidence that
was led in the present matter. It suffices to note that the trial court did not
see for itself the points of similarity which the expert witness relied on. The
matter was compromised by the trial or set down prosecutor's failure to
appreciate the essence of ballistics evidence. It can be noted from the
prosecutor's questions posed to Constable Baraka, one of the details who
attended the scene of shooting. Having stated about picking up some spent
cartridges, the prosecutor asked the following-
“Q. What are these cartridges, really?
A. Used firearm bullets.
Q. The real bullets?
A. Yes, the used bullets.”
Although I am not dealing with the actual appeal it is
self-evident that the evidence on the examination of the exhibits was
inadequate. Therefore the appeal against conviction for attempted murder has
prospects of success. As regards the conviction for unlawful possession of a
firearm, this appears to be tainted with allegations of assault levelled
against the arresting officers. There is also lack of clarity on the sequence
of events taking into account the contradictions in the evidence of the Police
officers involved. I will also take into account the effective sentence the
applicant is likely to serve on this charge after factoring in remission on
good behaviour.
I have also considered that although the first count is
inherently serious there is nothing to show that the admission of the applicant
on bail will jeopardise the interests of justice. This particularly so when
there is no evidence that the applicant was difficult to arrest or that he
attempted to undermine the course of justice.
In the result the application for bail pending appeal
succeeds and is granted in terms of the draft order. The bail amount is
increased to US$500-00 and in addition the applicant is ordered to surrender
his travel document to the clerk of court, Harare Magistrates Court.
Costa
& Madzonga, applicant's legal practitioners
