CHEDA
J: This is an application for a discharge at the close of the state
case.
The accused were charged with one count of kidnapping and another of
murder. They pleaded not guilty to both counts.
In relation to count one, the allegations against them is that on the 3rd
March 2001 at Silverstream Farm, Nyamandlovu, in Matebeleland North Province,
they wrongfully, unlawfully and intentionally kidnapped one, Forster Moyo and
tied him to a tree for two hours, thereby, depriving him of his liberty and
causing him some injuries.
With regards to count two it is alleged that on the 4th March 2001
at Silverstream Farm, Nyamandlovu, in Matebeleland North Province they
wrongfully, unlawfully and intentionally killed and murdered one Elizabeth
Gloria Olds [hereinafter referred to as “Olds”].
Count one
The State called Forster Moyo [hereinafter referred to as “Moyo”]. His evidence
is that at the relevant period he had just been employed by Olds for three
months at the said farm. On the 3rd March in the afternoon,
while he was passing through his employer's homestead he was stopped by two men
who apparently had been lying on the ground in the yard. They forcibly
took him away into the bush where they tied his hands behind a tree and also
tied his legs together. He was made to sit in that position with his legs
stretched. They left him in that position for an hour. These two
men asked him about the set-up at the farm, that is the number of whites in the
farm, where the money was kept, the number of guns and where these guns were
being kept. He told them that there was one white person, but, he had no
knowledge of the guns and money.
After an hour, these men came back and released him with a warning not to tell
anybody. He, however, could not keep his ordeal to himself and told one,
Fanuel. He then retired to bed.
In the early hours of the 4th March 2001, at about 0400 hours he had
sounds of gunfire. He stated that “after hearing the gunshot, I then knew
that those were the people who had killed.”
It was further his evidence that he was later called by the Investigation
Officer George Levison Ngwenya [hereinafter referred to as “Ngwenya”] to identify
the accused at Bulawayo Central Police Station. He told the court that
Ngwenya, said “we have apprehended those people, we want you to identify
them”. Ngwenya told him that the people were in a straight line and he
told him to go straight and touch him. He then went straight and
touched accused one.
This witness did not see who shot Olds as he was asleep at the time. He,
however, concluded that it was the accused persons who had killed her as they
had come to him the previous day asking about the activities at the farm, the
number of white residents, the number of guns and money.
In his evidence in chief and under cross-examination he insisted that it was
the accused who had killed Olds. Under cross-examination he admitted that
his conclusion was based on suspicion because of his encounter with them the
previous day. Further, under cross-examination he told the court that his
captors threatened him with death, but, later on changed his story and stated
that although they did not threaten him, he came to that conclusion because of
fear.
With regards to accused one's identity his evidence was that, he observed that
he had short hair and was dark in complexion although he was now lighter
because he was now applying skin lightening cream. He admitted that he
was in a state of shock at the time. He conceded that he did not take
much notice of his facial features, but his complexion and mouthstache.
It is further his evidence that prior to the identification parade Ngwenya took
him and stayed with him for nearly two weeks. This was at Ngwenya's
expense. During the identification parade he saw people standing in a
line, and Ngwenya had told him that accused one was there and that he should go
straight to him without moving from one suspect to the other. He also
told the court that accused one was dressed differently from others. It
is also his evidence that Ngwenya had told him that people who had committed
murder where amongst those that had been shown to him.
When pointed out by the defence counsel that accused one was in fact lighter he
maintained that it was him although his captor was dark. He insisted that
it was accused one who had threatened him with death.
This witness also told the court that
before he identified accused one, he was taken up to an office and was told to
pick up a suspect before he went down to where the identification parade was
being conducted.
The next witness was Ngwenya. His evidence was that he is attached to the
Investigating office section in the Zimbabwe Republic Police. At the
relevant period he was stationed at Nyamandlovu Police Station. He
together with Detective Inspector Hlomayi [hereinafter referred to as
“Hlomayi”] attended the murder scene. On the 29th March 2001
he was called to the Criminal Investigation Department, Bulawayo and was part
of the team that went to Nyamandlovu to collect Moyo in order for him to
participate in the identification parade. Upon arrival he handed Moyo to
Detective Inspector Malunjwa. Ngwenya was made to guard Moyo in a different
room during the identification process. He did not see what transpired
during the identification parade. According to him, Moyo was
brought to the identification parade in order to identify the people who had
kidnapped him. He did not see Moyo again until he met him in court for
trial.
He further told the court that accused persons were arrested during a stock
theft investigation as they found accused two in possession of a camouflage
uniform which they linked to the one which one of the kidnappers was putting
on. The weapon that was allegedly used either for the stock theft
or murder case was not recovered.
Under cross-examination he told the court that he indeed kept Moyo in his
custody as there were no witness facilities at the police station. He,
however, denied telling the witness that the reason why he wanted him to
participate in the identification parade was in order for him to specifically indentify
suspects whom they had already arrested and that the said suspects were in the
group from which he was to select from.
The following points are pertinent in his
evidence. When being questioned by the defence, he stated that Moyo was
lying if he stated that:
(1)
he had told him that the suspects were amongst the people in the parade
and that he should go straight to accused one and hold him. (my emphasis)
(2)
he denied that he was present when Moyo was supposedly told anything by anyone
during the identification parade, and
(3)
he admitted that no one was seen killing the deceased.
In addition, he stated that what led to
accused two's arrest was because of his footprints which led to his motor
vehicle which was being pushed by villagers. It is this evidence which
had led to his arrest in connection with a charge of stock theft. Both
accused were arrested for stock theft, charged but were acquitted. Under
cross-examination he admitted that the reason which led to accused's arrest was
mere suspicion as there was no evidence which linked them to the said offence.
The next witness was Detective Chief Inspector Stephen Mpofu, [hereinafter
referred to as “Mpofu”]. He told the court that he conducted an
identification parade on the 29th March 2001 where accused one was a
suspect. He told the court that there were nine people on parade who were
not similarly dressed. He explained to them that there was going to be
one witness only.
He further stated that he explained to Moyo that “the person he may have seen
at the scene could be amongst the people he is seeing” He also told Moyo
that he should walk from left to right and the moment he got to the person
concerned he should touch him. Moyo indeed walked from left to right and
when he got to Accused one he touched him and a photograph was taken.
After the photograph was taken of accused one he asked him if he had any
complainants to which he stated that he had none.
The last witness was Collen Dhlamini, who is also a member of the police force
and was a photographer at the time. His evidence was solely to do with
the photography process under instructions from Mpofu.
The State then closed its case.
The defence applied for a discharge
at the close of the State Counsel, a procedure provided for in Section 198 (3)
of the Criminal Procedure and Evidence Act [Chapter 9:07] which reads:
“Section 198 Conduct of Trial
(3) If at the close of the case for
the prosecution the court considers that there is no
evidence that
the accused committed the offence charged in the indictment, summons or charge
or any other offence of which he might be convicted thereon, it shall return a
verdict of not guilty.”
The question that falls for determination is whether or not the State has
proved a prima facie case against the accused to justify accused being
placed on their defences.
An application of this nature begs the question; Is there any evidence of the
commission of the offence upon which a reasonable man might convict the
accused, see S v Hartlebury and another 1985 (1) ZLR 1 (HC). In
that case McNALLY J (as he then was) clearly laid down three instances where an
accused should be discharged at the close of the state case, where:
(a)
there is no evidence to prove an essential element of the offence, see AG v
Bvuma and another 1987 (2) ZLR 96(S);
(b)
there is no evidence on which a reasonable court, acting carefully, might
properly convict, see AG v Mzizi 1991 (2) ZLR 321 (S) at 323B;
(c)
the evidence adduced by the prosecution is so discredited or manifestly
unreliable that no reasonable court could safely act upon it, see AG v
Tarwirei 1997(1) ZLR 575 (S) at 576G.
This approach
has been adopted in various cases in our jurisdiction and infact is the
current correct legal position, see S
v Tsvangirai and Others HH-119-03. Now turning to the facts in casu,
the State concedes that on the charge of murder, there is no witness therefore
it sought to rely on circumstantial evidence. It is in this context that
accused one is said to have been involved in the kidnapping of Moyo. It
is worthy of note that the state's star witness Moyo, completely absolved
accused two as he stated that he was not one of the people who kidnapped him
and was not at the identification parade.
Moyo's evidence was pregnant with inconsistancies and contradictions vis-a-vis
other witnesses. It is his evidence that he was with his assailants in
the afternoon and had a good look at them. However, when an opportunity
to identify them or at least one of them on the 12th March 2001 at
Silverstream Farm, Nyamandlovu availed itself he could not do so, despite the
fact that the incident was still fresh in his mind.
It is submitted by the State that accused one was identified through a properly
conducted identification parade process. It is essential that I now
examine the circumstances surrounding this process. According to Moyo he
was kept at Ngwenya's house for almost two weeks, at Ngwenya's expense prior to
the identification parade.
The inescapable question at this juncture is, why would a police officer go out
of his way to host a witness under those circumstances. The most
important factor, however, is the contradiction between Moyo on one hand and
two police officers, Ngwenya and Mpofu on the other. Moyo told the court
that when he got to the office, Ngwenya told him that they had arrested the
people who had kidnapped him and were in the parade (my emphasis). As
a result of this information he went straight to accused one and touched
him. Ngwenya denies having spoken to him about the suspects or about how
he was expected to behave at the parade. Mpofu on the other hand told the
court that Moyo approached the parade from left to right and he did not tell
him that the suspects were definitely in the parade but that they maybe
there. (my emphasis)
This is a clear contradiction which goes to the material and root of the
matter. One wonders why three people, present at the same time and during
the same incident would come out with three different versions of what took
place. It is strange that there can be three different truths on the same
incident. Infact this is impossible. My conclusion is that falsus
in uno, falsus omnibus (false in one thing, false in everything).
The State is basing its case on circumstantial evidence. This is
basically that:
(1)
first accused was seen by Moyo in the vicinity of the murder scene and that he
is one of the two people who kidnapped him;
(2)
accused one was identified by Moyo at the identification parade;
(3)
accused two's motor vehicle tyre marks were seen sometime after the murder;
(4)
the cartridges of the ammunition of the firearm that was picked up at the scene
of the murder is similar to the cartridges of the ammunition that was picked up
at the scene where a bull was killed; and
(5)
that accused one was found in possession of an army uniform
I now move on to examine the above points as raised by the defence counsel.
1.
Accused one at the scene of the murder
Moyo's evidence is that he saw accused one
in the company of another man when they were kidnapped him. He later
identified accused one at the identification parade, but, emphatically said
that accused two was not the man he had seen with accused one. He
admitted that during the kidnapping he was terrified and confused.
2.
Identification Parade
At the identification parade, Ngwenya told
him what to do after hosting him in his house for nearly two weeks. He
identified accused one by his complexion.
In my view this type of identification is faulty in that Moyo did not have time
to observe his assailants due to his mental state, that he was told that the
suspects were present in the parade and that accused one was not dressed in
similar clothes with others. These courts have a defined guideline with
regards to identification of suspects. Due to the possibility of mistakes
I find the principles laid down in the case of Mutters & Anor v S
S-66-89 and Makoni & Ors v S S-67-89 binding.
I also find the remarks by HOLMES JA in S v Mthetwa 1972 (3) SA 766 at
768 A-C persuasive where the learned Judge sated:
“Because of the
fallibility of human observation, evidence of identification is approached by
the courts with some caution. It is not enough for the identifying
witness to be honest; the reliability of his observation must also be
tested. This depends on various factors such as lighting, visibility and
eyesight; the proximity of the witness; his opportunity for observation, both
as to time and situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility; the accused's face,
voice, build, gait and dress; the result of identification parades, if any; and
of course the evidence by or on behalf of the accused. The list is not
exhaustive. These factors, or such of them as are applicable in a particular
case, are not individually decisive, but must be weighed against the other, in
the light of the totality of the evidence and the probabilities.”
Infact
this is the approach adopted in Mutters and another and Makoni and others v
S (supra).
The relevant questions that the court should ask itself include the following –
a)
For what amount of time did the witness have the accused under observation?
b)
What was the distance between the witness and the accused at the time of observation?
c)
What were the lighting conditions at the time?
d)
Were there any objects in the way which would have prevented or obscured
observation?
e)
Does the witness have good or poor eyesight? Does he wear glasses and did
he have them on at the time?
f)
Did the witness see clearly the accused's face or only the rest of his body?
g)
Had the witness known the accused previously and if he had, how well had he
known him?
h)
If the accused has no distinctive facial or other features, how can the witness
be certain of the identification?
3.
Accused two's motor vehicle tyre marks
Accused two was implicated in this matter
on the basis that his motor vehicle tyre marks had been seen where a bull had
been killed. Both accused were arraigned before the courts but were
acquitted. No other evidence with regards to the tyre marks was
produced. In my view identification of an accused on the basis of
footprints or even tyre marks should specify the features of those marks or
prints and the strength of the inference to be drawn should depend on the
degree of accurate detail to be ascribed of the total combination, see R v
Madesane 1932 TPD 165 at 166. It is for that reason that the state
failed to secure a conviction for the charge of stock theft. That
evidence was not found to be acceptable then and it is indeed not acceptable
now as it falls far short of the principles in Madesane case (supra).
4.
Cartridges found at the scene
Moyo's evidence is that accused one was armed
with an AK assault rifle. The cartridges picked up at the murder scene
and at the stock theft scene are similar. However, the evidence led in
court by Ngwenya is that the type of ammunition they recovered from both scenes
were similar. Under cross-examination he conceded that the said
ammunition could have been fired from any of the following rifles, AKM, SKS,
and AK Yugoslavia. In view of this, it is clear that there is no safety
in concluding that the cartridges found at the murder scene were from accused
one's AK rifle which Moyo says accused 1 was armed with.
5.
Possession of an army uniform
Accused one admitted that upon his
retirement from the army he was allowed to take his army uniform. The
army uniform was not produced in court and it was also uncontroverted that many
people including serving army officers are using their uniforms. There is
therefore no legal basis to find that it is the same uniform one of the
perpetrators was putting on.
Mpofu conceded the following facts during cross-examination:
(1)
that there were 9 people who participated in the parade and accused one was the
6th in that line;
(2)
that accused one was the only one from the cells. (he was obviously not
well turned out);
(3)
that he told Moyo that one of the suspects may be in the parade, and
(4)
that it was possible for someone to see what was going on at the parade ground
from the office where Moyo and Ngwenya were.
His evidence is a serious, major and material contradiction to that of Ngwenya
and Moyo. As already pointed out (supra)
one or all of them are not being truthful or are genuinely mistaken about what
actually transpired as state before. It is impossible to have three
different truths about one incident.
The state case hinges its case on circumstantial evidence. Our law with
regards to circumstantial evidence was ably laid down in the celebrated case of
R v Blom 1939 AD 188 at 202 – 203. The learned Judge, WATERMEYER
JA stated:
“In reasoning
by inference there are two cardinal rules of logic which cannot be ignored.
(1)
The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(2)
the proved facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn.
If they do not
exclude other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”
The cogency of circumstantial evidence
usually arises from the number of independent circumstantial evidence which all
point to the same conclusion, see Hoffman – South African Law of Evidence
2nd Ed. P423. The inference drown from those circumstances
must exclude all other reasonable inferences and a distinction should be made
between inference and conjecture or speculation.
It is now settled law in our jurisdiction,
that where at the end of the state case, there is no evidence upon which a
reasonable court might convict, the court has no discretion, it must discharge
the accused, see S v Kachipere 1998 (2) ZLR 271(S) at 276G where
GUBBAY C J remarked:-
“Hence, so far
as the law in Zimbabwe is concerned, there is no longer any controversy as to
whether a court may properly refrain from exercising its discretion in favour
of the accused, if at the close of the case for the prosecution it has reason
to suppose that the inadequate evidence adduced by the State might be
supplemented by defence evidence.” See also S vTsvangirai
(supra)
I must now consider the evidence presented
by the State in this matter. There is no evidence proven beyond
reasonable doubt that firstly, accused two was involved in either count.
Accused one was poorly identified due to the flawed identification process as
there are glaring material contradictions by the state witnesses.
This has led to the witnesses being
discredited to an extent that they cannot be relied upon. The State has,
therefore, failed to lay sufficient ground for the justification of putting accused
on their defences.
As the State has in my view failed to make
a prima facie case against accused, it cannot be allowed to proceed to
a defence case in the vain hope that its otherwise weak case may be
supplemented by the defence. The accused can not be put on their defence
with a calculated view of bolstering the State case. The onus of proof on
the prosecution remains very high and will always be within the state's
enclosure. The State cannot hope to secure a conviction on the basis of
hoping that accused may implicate each other under cross-examination.
In conclusion, I am overly persuaded by
the defence's argument that there is no evidence which a reasonable court
acting carefully might properly convict the accused.
In light of the above the only
irresistible conclusion I come to is to grant the application and both accused
are acquitted on both charges.
Criminal Division, Attorney General's
Office, applicant's legal practitioners
Marondedze,
Mukuku, Ndove and Partners, respondents' legal practitioners
