MAWADZE J: This record is a classic example of how not to
write a judgement in a criminal matter.
The record was referred to me on automatic review in 2011 and on 21 May 2011 I
raised the following query with the trial Magistrate;
“1. The reasons for judgement by the trial Magistrate do
not at all state specific findings made and the evidence which links accused to
all 5 counts.
2. May a detailed and well reasoned judgment be submitted
to enable this court to properly review the proceedings.”
Instead of responding to my minute the trial Magistrate on
15 November 2011 decided to seek guidance to the Provincial Magistrate in
charge of Mashonaland – Harare. The pertinent part of the trial Magistrate
minute reads as follows;
“I am hereby seeking for your indulgence if it is not only
impossible but also unlawful for me to rewrite my judgment again at this
stage.”
The import of the trial Magistrate minute is that he
or she was seeking “administrative protection” from my apparent unlawful
instructions and that he or she could not act as directed by this court.
The Provincial Magistrate decided to refer the matter to
the Acting Chief Magistrate under cover of a minute dated 14 November 2011
which reads in the relevant part as follows;
“The Magistrate has written seeking guidance on whether it
is permissible for him to redo the judgment considering that he is now functus
officio.”
Apparently the Acting Chief Magistrate referred the
matter to the Secretariat of the Judicial Service Commission who in turn
referred it to the Judge President. No official endorsements were made
until the record later found its way to my office again on dates I cannot
recall. This delay in my view has now rendered these review proceedings
merely academic. The mind boggles why this matter for review was now
being dealt with administratively.
The facts of this matter are as follows;
The accused was arraigned on 8 February 2011 before a
Harare Magistrate facing 5 counts being 4 counts relating to contravening s 131
(1) of the Code [Cap 9:23] – Unlawful entry in aggravating
circumstances and one count of contravening s 113 (1) of the Code [Cap 9:23]-
Theft. The accused pleaded not guilty to all the 5 counts and after a
protracted trial he was found guilty as charged in all the 5 counts on 10 March
2011. On the same date all the 5 counts were treated as one for sentence
and accused was sentenced as follows;
“5 years imprisonment of which 6 months imprisonment is
suspended on condition accused restitute Methulisi Dube the sum of $70,
Ziwakaya in the sum of $25 and Abel Charangiwa in the sum of $20 through the
Clerk of Court Harare on or before 30 /05/ 2011 by 4pm. 4 years 6 months
effective.”
In denying the charge the accused in his defence
outline stated that the Police arrested him while at a bus stop when he was
from Westlea Harare and that at the Police Station a bag containing clothes was
planted on him. He said the bag contained clothes and two cellphone
handsets. Accused said he was assaulted and forced to make admissions to
cases reported to the Police which he was not aware of.
The allegations made in each count and the evidence led can
be summarised as follows;
In count 1 it is alleged that on 2 December 2010 at No. 11
Kimberley, Ashdown Park Harare the accused, during the night approached Charles
Chimukute's house and opened the bedroom window through which he fished out a laptop
bag valued at US$20.00. The bag was recovered when accused was arrested
on 28 December 2010.
In his evidence Charles Chimukute confirmed the theft of
the bag which he discovered later. He said he was called at the Police
Station where he was advised that accused had been arrested in possession of
his bag. He said accused was implicated by the Police. The accused
as already said denied possession of the bag in issue and committing the
offence.
In count 2 it is alleged that on 20 December 2010 at No 8
Jeffries Road Ashdown Park Harare belonging to Methulisi Dube the accused at
about 0300hrs approached the complainant's bedroom window which he opened and
took out a cellphone Nokia 1681 valued at US$70. Accused was arrested on
25 December 2010. While it is alleged in the facts that the cellphone was
recovered, the complainant Methulisi Dube in his evidence said cellphone was
not recovered.
In his evidence Methulisi Dube alledged that on the day in
question he was woken up by the noise which the accused had made after opening
the window and fishing out his jacket at about 0200hrs. He said despite
being dark outside he was able to peep out and identify the accused who was not
known to him. He was later told by the Police after accussed's arrest
that accused had confessed to committing the offence at his house and made
indications in the presence of his brother Thulani Mbano. He was allowed
to give hearsay evidence on indications allegedly made. Under cross
examination by the accused Methulisi Dube admitted that he only identified
accused as the culprit at the Police Station after Police had indicated accused
to him. All he said is that accused looks similar in stature to the
silhouette he saw outside his house when the offence was committed. He
disputed that the cell phone was recovered.
Methulisi Dube's evidence in count 2 on identifying the
accused is clearly not credible and his property was not recovered which could
link accused to the offence. The evidence of Thulani Mbano in respect of count
2 seems inadmissible and irrelevant. He was allowed to give evidence on
indications accused allegedly made at the house relevant to count 2. Accused
disputed voluntarily leading the Police to this house, let alone making any
indications. No proper evidence of indications made by accused in count 2
was adduced neither was accussed's confirmed or unconfirmed statement
produced. The stolen item was not recovered hence the apparent lack of
nexus with the accused.
In count 3 it is alleged that on date unknown to the state
in December 2010 at No. 10 Powel Close Ashdown Park Harare, the accused
approached the complainant Mila Ziwakaya's bedroom window which he opened and
fished out a Nokia cell phone valued at US$25 00 and it was not recovered as it
is alleged accused sold it.
In his testimony Mila Ziwakaya told the court that on a
night he could not recall he woke up due to some noise and realised that his
bedroom window had been opened. He woke up, went outside but did not see
anyone. He later realised his cell phone was missing. He did not
make a report to the Police. He did not recover the cell phone. His
only link to the accused is that after accussed's arrest accused was brought to
his house by the Police where he made some indications.
In cross examining Mila Ziwakaya the accused even took the
witness to task on the truthfulness of the alleged theft of the cellphone as no
report was made to Police. Mila Ziwakaya was not able to explain why no
such report was made. The accused vehemently denied leading the Police to
Mila Ziwakaya's residence. He denied making indications confirming the
commission of the offence. All what Mila Ziwakaya said is that accused
committed the offence because he allegedly confessed. The nature of the
confession is unclear. The evidence in support of count 3 is difficult to even
appreciate.
In count 4 it is alleged that on 21 December 2010 the accused approached Abel
Chirangwa's residence No 4 Elas Close Malborough Harare at about 2200hrs where
he opened a bedroom window and stole a Nokia cell phone valued at US$20-00
which was not recovered.
It remains a mystery as to how the accused was convicted of this count 4. As
per the record no evidence was led from the complainant explaining the alleged
commission of the offence and how accused is linked to the offence. The basis
of the conviction remains unexplained on the record.
In count 5 it is alleged that on the day accused was arrested on 28 December
2010 the accused approached complainant Moses Matibvu's residence No 42 Eves
Crescent Ashdown Park Harare where a Mercedes Benz motor vehicle was parked in
the yard. The accused is alleged to have broken the passenger window and stole
a car radio and a knife valued at US$600-00 which were all recovered upon
accused's arrest.
In his evidence the complainant Moses Matibvu explained that on the night in
question he heard some noise outside, woke up but did not see anything. The
next morning he realised the glass window of his motor vehicle had been broken
into and that the face of the car radio (not the car radio) and a knife had
been stolen. He immediately reported to the police, and at the police station
accused had been arrested in possession of the stolen items which he identified
and was able to fit the face cover of the radio on his car radio. No useful
questions were put to him by the accused as he maintained that accused was in
possession of his stolen property and accused did not dispute all that at the
police station. The accused is clearly linked to the offence in count 5.
The last state witnesses who gave evidence are two police details Constable
Peter Matope the arresting detail and the investigating officer Detective
Sergeant George Pfidza.
The evidence of Constable Peter Matope is that on 28 December 2010 he arrested
the accused who was carrying a bag which he discovered contained a ZTE cell
phone, a knife and a car radio (probably the face cover of the radio), brown
shoes and khaki shorts. From the list of the property stated only the bag was
relevant to count 1 and the car radio cover and knife relevant to count 5 are
material. It was never established on the record who the owner or owners of the
ZTE cell phone, the khaki shorts and brown shoes were. Constable Peter Matope
said the accused at the time of arrest claimed that all the property in his
possession was his. He said he took accused to the police station and
complainant Moses Matibvu in count 5 arrived reporting the theft. He
immediately showed him the property and Moses Matibvu identified the car radio
cover and knife as his property.
All what accused said in cross examining Constable Peter Matope is that he was
never in possession of the bag and the property therein but that the police
planted it on him. This was dismissed as false by the witness. The evidence of
Constable Peter Matope only links to count 1 and 5.
The evidence of Detective Sergeant George Pfidza who is the Investigating
Officer is that accused confessed to the commission of the offence in the
company of the accomplice who is at large. He said accused led him to
complainant Methulisi Dube's house in count 2 where he made indications
although the stolen property was not recovered. He said accused again led him
to complainant in count 3 Mila Ziwakanya's house and made indications relating
to commission of an offence involving a Nokia 1208 cell phone. No further
evidence was led from him in respect of count 1, 4 and 5 as regards the nature
of investigations he carried out. He was not asked to point out the specific
investigations he made linking the accused to each of the 5 counts.
In cross examining Detective Sergeant George Pfidza accused denied ever
confessing to committing the offences or making any indications. As already
said accused's warned and cautioned statement was not produced nor were the
nature of indications made explained.
This is the state case.
The accused gave evidence and adopted his defence outline as his evidence. He
was cross examined but stuck to his story. The accused denied the time given by
the arresting detail as the time he was arrested. He denied possessing the bag
or the radio. Accused was not able to explain why the stolen bag and other
items would be planted on him by the police who were not known to him. Accused
vehemently denied making any confessions or indications. He disputed that there
is evidence linking him to all the 5 counts. The Prosecutor made reference to
an unconfirmed statement which was not produced.
The reasons for judgement by the trial magistrate, hardly covers a page, part
of which relates to the charges preferred and accused's defence. Let me quote
the relevant part of the judgment.
“It was the state's case to prove beyond reasonable doubt
that accused committed the alleged offences. In trying to do so the state
called 7 witnesses whose evidence is filed of record and it is irrelevant to
recite the same. However of importance to note is the fact that all the
evidence from the witnesses corroborated each other that accused was found in
possession of some stolen property, accused even led the police to all
different houses he had committed the offences he is facing.
In his defence accused denied the allegations and
testified that the police were in possession of a bag which had stolen
property. Accused however failed to give a reasonable explanation and therefore
did not have any defence to profer. After the close of the state case it is the
court's findings that,
(i)
State managed to prove its case beyond reasonable doubt.
(ii)
Accused is found guilty as charged on all counts.”
It is these perfunctory reasons for judgment which prompted
me to seek further details from the trial magistrate on the specific findings
of facts proved and the specific evidence he considered in arriving at the
verdict in respect of each count. The so called judgment is not detailed enough
for me to appreciate the reasoning of the trial magistrate who had clearly chosen
the easy way out by writing a scanty judgment devoid of any reasoning process.
All the trial magistrate had to do was, on the basis of evidence of the record
point out the facts proved in each count and the nature of evidence linking
accused to each count. The trial magistrate was to give reasons why he believed
or disbelieved the state witnesses and the accused.
The Magistrates' Handbook,
by G Feltoe which is a very useful book to judicial officers explains that
unless reasons are given for a judgment it is impossible to determine how the
ultimate conclusion was reached and whether it was reached on a proper reasoned
basis. The need for this is clear. The trial court cannot just make arbitrary
decisions based on mere caprice, whim or casting of lots. A clear thought
process based on evidence adduced should be evident.
It is trite that judgment must be reasoned and the reasons
for reaching a verdict must not only be stated but clear. In the case of S
v Makawa & Anor 1991 (1) ZLR 142 (S) where the trial court had
failed totally to provide reasons for judgment (unlike to this case) it was
pointed out that failure to give reason for judgment is a gross irregularity.
In the case of S v Ncube & Ors 2003
(1) ZLR 581 (H) NDOU J with the concurrence of CHEDA J explained at great
length the basic steps a trial court should take and the techniques it should
follow in reaching a decision. The learned Judges said at p 585 A –
E:
“I think the words of John Reid
Rowland in Criminal Procedure in Zimbabwe are instructive in this regard. At pp
24-10 the learned author remarked;
“Essentially, the judgment
should contain a brief summary of the facts found proved and the trial court's
appraisal of the credibility of each witness, stating what evidence was
accepted or rejected and giving reasons for its decision. It is of no
help to simply outline the evidence of all witnesses and make bold comments
such as –
“The state witnesses gave
evidence well and accused gave his badly. Accordingly, I found this
accused guilty; See magistrates Hand Book pp 81 – 82.
Where there are questions of
law the application of the law to the facts found proved should then be dealt
with.”
The learned Judges continued at pp 585 D – E;
“What is required is a complete
and meaningful judgment touching all material evidence led during the
trial. Magistrates should always bear in mind that in criminal trials the
giving of reasons for conviction is a very important part of the trial, the
purpose of which is to avoid creating the impression that the decision is
arbitrary or capricious. For a magistrate not to record what he
considered amounts to gross irregularity, which will usually result in a
conviction being set aside on appeal or review, although the conviction may
still be upheld if the evidence on record supports it. See S v Makombe
HH 120 – 86 and S v Rusero HH 151 – 86.”
All I had requested the trial magistrate to do in casu as per my
minute is to provide the full reasons informing his decision in all the 5
counts. It is disingenuous for the trial magistrate to suggest that he
had been asked to manufacture another judgment as it were. The purpose
for criminal review is to assess if proceedings are in accordance with real and
substantial justice. This court cannot properly discharge that function
where meaningless judgments devoid of any analysis or assessment of evidence on
record are routinely conveyed to judges who are then expected not to only read
the evidence on record but to analyse it as well. I had simply asked the
trial magistrate to do what he is expected to do which he had chosen not to do
in the first place to enable me to properly and meaningfully review these
proceedings.
It is clear that the judgment by the trial magistrate fails far short of the
standard expected. There is no summary of facts found proved in each
count. There is virtually no attempt to undertake an appraisal of the
credibility of state witnesses. This amounts to gross irrregularity.
I have deliberately summarised the evidence led in court on each count to
enable me to dispose of the matter in a fair, on a just manner despite the
shortcomings of the trial magistrate.
On the basis of evidence on record, I am satisfied that when the accused was
arrested on 28 December 2010 he was in possession of the bag relevant in count
1 which contained the front cover of the radio and a knife relevant to count
5. I am not persuaded that the police planted its evidence on the
accused. The complainant in counts 1 and 5 explained how the offences
were committed at night at their premises and the said property stolen.
This clearly links accused to offences of count 1 and count 5.
In respect of count 2 there is clearly no evidence linking the accused to the offence.
The alleged identification of the accused by Methulisi Dube in darkness cannot
be credible. No property linking accused to the offence in count 2 was
recovered.
In count 3 the complainant did not even report the offence. The property
stolen was not recovered. The only link to the accused are alleged
indications he made which are disputed. This cannot be the basis to found
a conviction in count 3.
In respect of count 4, it is clear that in writing this meaningless judgment
the trial magistrate never bothered to seriously consider the evidence on
record. The complainant in count 4 was not called to testify to provide
evidence of the commission of the offence and what was stolen. It remains
a mystery as to how the accused was convicted in count 4.
The attendant delays I have earlier on alluded to mean that this review process
is now merely for academic purposes. The accused has been prejudiced as
by now, if he was not a beneficiary of the Presidential Amnesty he has finished
serving the sentence imposed. Nonetheless there is need to do justice for
the case and possibly ensure that accused has a correct criminal record.
After analysing the evidence on record, a task which this trial magistrate
should have done, I have arrived at the following conclusion in respect of the
verdicts in all the 5 counts.
In count 1 and 5 the accused was properly convicted. The convictions in
counts 1 and 5 are therefore confirmed.
In respect of counts 2, 3 and 4 there is no evidence to support the conviction
of the accused. Consequently, the convictions in count 2, count 3 and
count 4 are set aside. The only evidence led relates to the accussed's
alleged confessions and indications. As already said this evidence is
disputed and was not properly adduced and admitted in the court a quo.
The trial magistrate did not analyse this evidence at all.
For the avoidance of doubt the following verdicts are entered;
Count 1
- guilty as charged
Count 2
- not guilty and
acquitted
Count 3
- not guilty and
acquitted
Count 4
- not guilty and
acquitted
Count 5
- guilty as
charged.
In respect of sentence it is clear that even if the accused had been convicted
in respect of all the 5 counts the overall sentence of 5 years imprisonment
induces a sense of shock. The total value of the property allegedly
stolen in all the 5 counts is US$735-00 only. There would be no reason to
visit the accused who is a first offender with such a harsh penalty more so
when property valued at US$620-00 was recovered. The actual prejudice in
all the 5 counts would be a paltry US$125-00.
In view of the verdict now entered, I can only consider the appropriate
sentence in respect of count 1 and 5. I believe a sentence of 8 to 10
months in each count would be appropriate with a part suspended on the usual
condition of good behaviour and part on condition of restitution if the
property had not been recovered. An effective sentence of 8 to 10 months
imprisonment would meet the justice of the case in count 1 and 5.
I am therefore, unable to correct the sentence in respect of counts 1 and 5 in
view of the inordinate delay involved to the extent that it would benefit the
accused. However, in order to correct the accused's criminal record, this
court should consider the sentence in count 1 and 5. All the property was
recovered hence there is no need to suspend part on the sentence on condition
of restitution.
The sentence imposed by the trial court is set aside on its entirety and
substituted with the following;
“Count 1
- 10 months
imprisonment
Count
5
- 10 months
imprisonment
Total
: 20 months
imprisonment of which 10 months imprisonment are suspended for 5 years on
condition the accused does not commit within that period any offence involving
dishonesty for which accused is sentenced to a term of imprisonment without the
option of a fine.”
The accused should be called and advised of the altered
verdicts and sentence. In addition the Registrar should forward a copy of
this judgement to the Chief Magistrate since the matter had been referred to
his office as already explained.
TAGU
J agrees: ………………………
