The required standard of proof beyond reasonable doubt was succinctly expounded in the case of..., where the court observed that:

"A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of a criminal complainant, but the fact that such credence is given to the testimony does not mean that conviction must necessarily ensue. Similarly, the mere failure of the accused to win the faith of the bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant be believed and the accused disbelieved. It demands that a defence succeeds wherever it appears reasonably possible that it might be true."

Whilst there is no onus on an appellant to show his innocence, the court was still required to be satisfied that his explanation was improbable and that his explanation was false. As put in R v Difford 1937 AD 370…,.;

“…,. No onus rests on the accused to convince the court of the truth of any explanation which he gives. If that explanation is probable, the court is not entitled to convict unless satisfied not only that the explanation is improbable, but that, beyond any reasonable doubt, it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

See also R v N 1946 AD 1023.

As for the ground of appeal that the court erred in placing the appellant on his defence after the State had conceded that it had failed to establish a prima facie case, the submission is not wholly correct. It is doubtful, on the case law, whether such an error can be a sound ground of appeal standing alone. The authorities do not agree that is so.

Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that 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 or any other offence of which he (or she) might be convicted thereon, it shall return a verdict of not guilty.

There is sound basis for ordering the discharge of the accused at the close of the case for the prosecution where:

(i) There is no evidence to prove an essential element of the offence.

(ii) There is no evidence on which a reasonable court, acting carefully, might properly convict.

(iii) The evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It is significant that section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], unlike its precursor section 188(3) of [Chapter 59], uses the word "shall" and not "may" - "it shall return a verdict of not guilty." The amendment was probably occasioned by the dictum in., that it is: "not a judicious exercise of the court's discretion to put an accused on his defence in order to bolster the State case in a case which, standing alone cannot be proved."

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.

In..., the court held, however, that once an accused person is put on his defence, albeit wrongly, and is ultimately convicted, the refusal to discharge the accused is not in itself a sustainable ground for appeal against the ultimate conviction. At the stage the appeal is heard, the court cannot close its eyes to the evidence led on behalf of the accused, or co-accused, which, taken in conjunction with the State evidence, proves the accused's guilt conclusively. The question which the appeal court must consider is whether, on the evidence and the findings of credibility (if any), unaffected by irregularity, there is proof of guilt beyond a reasonable doubt. If the court does so consider - and the onus is on the State to satisfy it - there is no resultant miscarriage of justice and the irregularity will be ignored.

In my view, where the appeal court finds evidence supporting the conviction in the defence case, the fact that, standing on its own, the State case had not established evidence upon which a reasonable court could convict, does not entitle the appeal court to interfere with the conviction. Therefore, an appellant cannot succeed in persuading the court that he was entitled to an acquittal at the close of the case for the prosecution simply because, at that stage, there was insufficient evidence upon which he could have been convicted. If there was admissible evidence indicating guilt on the part of an appellant on the record, an appeal court cannot rely on the erroneous decision of the court a quo placing the accused on his defence, unless there is some other irregularity which renders the conviction insupportable or not in the interests of justice.

In the present case, the dearth of evidence was not cured, either by the appellant exercising his right to remain silent or the evidence showing that he gave his co-accused the tyres which led to his co-accused's arrest. The duty to prove beyond a reasonable doubt that the appellant committed the offence charged remained squarely on the State.,. There were too many gaps to put the matter beyond reasonable doubt.

The concession by the prosecution that there was no prima facie case against the appellant, in my view, was well made. It was for these reasons., we allowed the appeal.

In the result, therefore, the conviction in the court a quo is set aside and the following is substituted:

It is not the court's intention to embark on a deeper analysis of the evidence given by the two accused persons. This is so because their role in criminal proceedings of this nature is not to prove their innocence but merely to cast doubt on the State case as no onus rests on them.

In this regard I can do no better that repeat the instructive words of DAVIS AJA in the case of..., where the learned Judge remarked:

"And I repeat the court does not have to believe the defence story, still less has it to believe in all its details, it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true."

We are satisfied that all those involved in this case (the prosecution inclusive) share the view that the story told by the accused was flawless. It was told with convincing corroborative tongues. It sounded sincere and genuine. It was difficult to get the accused to depart from their story even under well-calculated and pointed cross-examination...,. We are satisfied as a court that it would be a travesty of the basic tenets of justice if, in the light of all the evidence tabled in this court, the two accused persons were to be convicted of the offence charged. We are accordingly inclined to grant them the benefit of the doubt.

A substantive ground of appeal advanced by the appellant is that the court a quo erred in convicting the appellant when there was no evidence led to prove unlawful entry in aggravated circumstances.

The State outline gave the following averments as the basis upon which the appellant was to be tried. The complainant is married to the appellant's sister. During..., the complainant left for South Africa and left the appellant in charge of his shop..., which at that time, he leased from the appellant. The outline continued:

"Some goods continued missing from the shop but the complainant could not tell how the goods were missing. At a later stage, he got an anonymous letter that someone had been stealing from his shop and suggested that the complainant changes his keys. The complainant changed his keys and all of a sudden no shortfalls were ever noticed. The accused took advantage of the time he was left in charge of the shop and obtained duplicate keys which he then used to gain entry into the shop and stole various items. Total value stolen is $100 000.00 and nothing has been recovered."

The evidence led during the trial did not prove:

(a) An unlawful entry;

(b) The quantity or the description of the goods stolen; or

(c) The value of such goods;

(d) When they were allegedly stolen; or even

(e) Such general deficiency as alleged in the outline.

The accused was called to give evidence in his own defence. He declined to give evidence and refused to answer questions put to him by the prosecutor.

The last two grounds of appeal are, again, interlinked, and I shall deal with them jointly.

The applicant submitted that the appellant's defence was “reasonably possibly” true, and to that extent the benefit of doubt should have been resolved in his favour. The court therefore erred by returning a guilty verdict in circumstances where the appellant's guilt was not proved beyond reasonable doubt.

The decision of the court was based on the credibility of the State witnesses.

An appeal court rarely interferes with the findings of a lower court on the credibility of a witness. The exception is where facts in the record do not justify, or support, the findings of fact by that court. (See S v Isolamo 1985 (1) ZLR 62 (SC); Edmore Musasa v The State SC 45/02; Bertha Hollington & Dicko Kaila v The State HH 125/02; Robert Mugwanda v The State SC 19/02; and Chalmers v F. Chimbari & 4 Ors SC 59/06).

The applicant's defence was that Drapper did not like him because their parents had died and left him in charge of their parents' house.

This is the same Drapper who was looking after the complainant and her sibling. She is the same person who the applicant accepts was concerned about the complainant's health, and took her to the clinic for treatment and for counselling.

The Drapper's conduct in this regard is not consistent with a person who did not like her brother. She was willing to bear the responsibility of looking after the applicant's children, when she did not have an obligation to do so, whilst the applicant resided in the family home.

The appellant was convicted by a Zvishavane Magistrate of possessing 6.46 kilogrammes of dagga. She was sentenced to 36 months imprisonment of which 10 months was suspended for 5 years on the usual conditions of future good behavior.

The salient facts of the matter are that the appellant's place of abode, Number 99 Mandava Township, Zvishavane, was searched on 1 August 2005 by two members of the Zimbabwe Republic Police, Criminal Investigation Department, who were acting on information.

At the time of the search, the appellant and her spouse and children were not present. The search was carried out in the presence of the maid, Sarafina Maramba. From the evidence of the police details, they did not have a search warrant to carry out the search. Sarafina initially refused them permission to search the house. She, however, later allowed them to do so. It is, however, not clear what prompted her to change her mind. The police details did not justify their search without warrant by the provisions of section 51(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] i.e. they did not testify that they, on reasonable grounds, believed that a search warrant would be issued to them; and, if they had first applied for the same, the delay in obtaining such warrant would defeat the object of the search….,.

The appellant's legal practitioner raised, inter alia, the gross irregularity of the prosecutor's failure to produce the dagga as evidence. [There is no evidence that the appellant was shown the dagga after her arrest]. There is no explanation why this dagga was not produced.

Counsel for the respondent has also pointed out that the search fell foul of the provisions of section 51(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

In our view, the conviction cannot stand simply because there is no evidence that the appellant was in possession of the dagga.

As alluded to, the premises were shared by the maid, the appellant, and her spouse amongst others. It could be her spouse or the maid who brought the dagga into the premises. There is no direct evidence that the appellant has anything to do with the dagga. The respondent relied on circumstantial evidence. In the circumstances, the issue of the possession or ownership of the dagga could not be resolved by making findings on the demeanor of the witnesses.

The approach to circumstantial evidence is captured by the learned authors HOFFMAN and ZEFERT in South African Law of Evidence, 3rd edition…,.:

“All circumstantial evidence depends ultimately upon facts which are proved by direct evidence but its use involves an additional source of potential error because the court may be mistaken in its reasoning. The inference which it draws may be non sequitur, or it may overlook the possibility of other inferences which are equally probable or at least reasonably possible.

…,. In R v Blom AD 1939 AD 188 at 202, 203, WATERMAYER JA referred to 'two cardinal rules of logic' which given the use of circumstantial evidence in a criminal trial:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one drawn. If they do not exclude other reasonable inferences, then they must be a doubt whether the inference sought to be drawn is correct.

See also S v Marange & Ors 1991 (2) ZLR 244 (SC); Teper v R [1952] AC 480 at 489; S v Shoniwa 1987 (1) ZLR 215 (SC) at 218F; and S v Vhera HB74-03.”

As alluded to above, many other persons had access to the premises in question, inter alia, the appellant's spouse, maid, and the appellant's six children. Because it can be inferred that any of these persons could have brought the dagga, the facts proved do not exclude every reasonable inference from them save the one drawn by the trial court. In fact, there is nothing at all that shows why, of all these persons, the court a quo linked the dagga with the appellant. There is nothing in the record at all. This also explains why the maid was the first person to be arrested for the possession of the same dagga.

The cogency of the circumstantial evidence does not rule out these other persons being the possessors of the dagga.

From the foregoing, the conviction cannot stand.

Accordingly, the conviction of the court a quo is quashed and sentence is set aside.

My understanding of the rules of procedure is that the crisp issue before us is the authenticity of Exhibit 13.

Counsel for the respondent has made heavy weather of the fact that some three persons who may have added weight to the State case were not called to testify in addition to the three witnesses who testified in the matter.

It is correct that the evidence of these three witnesses may have added weight to the State case, but the State case was already cogent without such evidence, and their being called would have served to simply repeat the evidence that was before the court.

At the conclusion of the trial, the trial magistrate returned a verdict of not guilty. He highlighted the material discrepancies in the State evidence and held that the State had failed to discharge the onus of proof beyond a reasonable doubt.

The two defence witnesses stated that they took the accused to the front of the shop after restraining him from a verbal mudslinging match with the complainant. When he drove to the front, the accused advanced towards him but they restrained him.

The two witnesses called by the accused disputed the version given by the State. Their evidence, coupled with the probabilities, satisfied the trial magistrate that the State had failed to prove its case beyond a reasonable doubt. That finding is unassailable.

At the end of the hearing of this appeal we upheld the appeal, set aside the conviction of the appellant and quashed the sentence. We indicated that the reasons for that decision would follow.  These are the reasons.

The appellant was convicted of stock theft by the Regional Magistrate, Bulawayo on 28 August 2006 and sentenced to 9 years imprisonment. He appealed to this court against conviction only on the following grounds:

''GROUNDS OF APPEAL

PREJUDICE

1. From the onset, the learned trial magistrate erred by allowing himself to be influenced by the fact that the court had dealt with a number of cases of stock theft involving complainant, that is apparent from the judgment. This appellant was greatly prejudiced by this in his defence.

2. The appellant had his bail revoked midway in the trial without having breached any of the conditions.

DELIVERY OF THE BEASTS

3. The learned trial magistrate erred in failing to make a full inquiry to his satisfaction as to how appellant was alleged to have taken delivery of the purchased beasts. Complainant had no corroboration whatsoever in as far as delivery of the purchased beasts was concerned.

4. The learned trial magistrate also erred in dismissing the testimonies of 3 defence witnesses who stated that as of September 2005 appellant still had not yet collected his beasts from complainant.

5. The learned trial magistrate further erred in dismissing appellant's explanation that after purchasing the 3 beasts from complainant in 2003 he had to wait until they had calves before collecting them.  The magistrate dismissed this as strange while in actual fact that is the traditional (sic) among rural villagers.

6. The learned magistrate also erred in holding that the absence of appellant's son to testify, whom the cattle had been bought on his behalf (sic) was fatal to appellant's defence and meant that the son got the cattle and went away.

THE ALLEGED THEFT

7. The learned magistrate erred in failing to put sufficient weight to the fact that the appellant collected 3 beasts from complainant's herd but only 2 are alleged to have been stolen.

8. The learned magistrate failed to appreciate that the appellant's defence was the claim of right and the State had the onus of disproving it and this was not done.

DESCRIPTION OF BEASTS

9. The learned magistrate also erred in accepting complainant's strong testimony that all the 3 beasts sold to appellant had no ears.''

It is common cause that sometime in 2003 the appellant, through his wife, Elizabeth Siwela, purchased three (3) cows from the complainant and was issued with a receipt dated 22 January 2003 which contained the transaction and also reflected that the final payment of the purchase price was made on 28 July 2003. The description of the cattle bought by the appellant was given as ''2 redish heifers and one brindle red heifer with blackish stripes.'' In 2005, the complainant, who told the court that he had about 800 cattle at his farm, was at the dip tank when he saw a cow, which had his ear mark and brand mark, now bearing the appellant's brand and among the appellant's cattle. He later saw a second one and reported the matter to the police who were accompanying him alleging that the appellant had stolen his cattle.

The description of the cattle recovered from the appellant, and allegedly stolen from the complainant, as given by the State witness, Brighton Tshuma, is that one cow was ''like an impala in colour - redish.'' State witness, Stanford Bereke, the Investigating Officer, described the two (2) cows that he recovered from the appellant as ''one cow had impala colour - red. The other was brindle with 7C and below was PSW.''

It must be noted that the complainant only pointed two (2) cows as having been stolen from him and their description clearly matches that of the beasts bought by the appellant from him two (2) years earlier. When confronted with this fact, under cross examination, the complainant could only say that those that he sold to the appellant had no ears after all their ears had been eaten away by ticks. It is difficult to understand why the appellant would have bought such deformed cattle. We found that story unbelievable anywhere. The trial magistrate did not concern himself with an inquiry into the issue of whether the cattle allegedly stolen were not the same that were sold to the appellant. It is important to note that when the appellant collected and branded the cattle he did so openly having invited the local Anti-Theft Committee members who testified in court that the cattle were collected in broad daylight from the complainant's employees.

In light of the foregoing, it is strange that the court a quo still concluded that the State had proved theft beyond a reasonable doubt.

Counsel for the respondent conceded that the appellant's guilt had not been proved beyond a reasonable doubt especially as the court a quo not only failed to clarify whether the beasts allegedly stolen were not the same as those that had been sold to the appellant but also that the learned trial magistrate appeared to place the onus of proof on the appellant instead of the State. The trial magistrate wanted the appellant to call his ''boys or sons…., who drove the 3 cattle'' to be called to confirm that issue.

We are of the view that the concession by the State is proper. Clearly, there remains a possibility that the complainant was laying a claim to cattle which he had already sold.

In the result it is ordered as follows: that

1. The appeal succeeds with the result that the conviction of the appellant of stock theft is set aside.

2. The sentence imposed is also accordingly quashed.

At the conclusion of submissions in this matter we dismissed the appeal against both conviction and sentence and said our reasons for dismissing it will follow. These are the reasons.

The appellant was convicted by the Regional Magistrates Court on 3 June 2010 of three (3) counts of rape and two (2) counts of aggravated indecent assault….,.

The Assessors are of the view that there is sufficient evidence to convict the accused of murder with actual intent. They are satisfied by Tawanda Wairosi's evidence that the accused crushed Ronald's head with a stone. 

I am, however, hesitant to agree with that finding because of the glaring difference between Tawanda Wairosi's evidence and what the State said in its outline he was going to tell the court. I am also not quite satisfied by Tawanda Wairosi's prevarications on whether or not he was left by the motor vehicle. These unsatisfactory aspects of the State's case raise a reasonable doubt which, in my view, should be resolved in the accused's favour.

In the case of doubt, it is better to let a guilty man go free than to convict an innocent man.

In the case of Simon Manyika v State HH215-02…., MAKARAU J…, commenting on the need for the State to prove an accused guilty beyond reasonable doubt said -

“On the basis of the foregoing, and being guided by the principle that it is better to let a few guilty persons go free than to convict even a single innocent person, I would allow the appeal.”…,.

The doubt I entertain would have been dispelled if Dr Mangunda or Japhet Maunzeni had confirmed that the deceased's head had an injury consistent with Detective Cst Elias Katsvere's and Detective Sgt Nhari's evidence, that he found a patch of hair on the stone, which he believed got to the stone when it was used to crush the deceased's head.

However, in terms of section 10(2) of the High court Act [Chapter 7:06]: “any question of fact arising at a criminal trial in the High court shall be decided by the majority of the members of the court.”

In this case, the Assessors are of the view that there is sufficient evidence to prove the accused guilty of murder with actual intent. In the result, the decision of the Assessors must prevail, as this is a finding of fact, which must be determined by the majority.

The appellant also contends that the lower court ought not to have convicted him on the basis that it did not believe his version. The case of R v Difford 1937 AD 370…, was cited.

GREENBERG J stated in R v Difford 1937 AD 370 that:

“No onus rests on an accused to convince the court of the truth of any explanation which he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

The trial court, having found the appellant's story to be false and unacceptable, it was justified in convicting the appellant.

The appellant's contention to the contrary in this regard is based on a half-baked appreciation of the dictum in the R v Difford 1937 AD 370 case. The conviction is properly justified and supported by the evidence on record. The court's judgment is clear and based on sound grounds.

I thus find no valid concerns which have been raised in relation to the conviction.

As I said, the question to be answered is whether it was proved on the required standard that the appellant instructed Investigation Officer Masara not to detain the suspect? Did the witnesses corroborate each other in this issue? 

No. Why?

(a) The complainant does not implicate the appellant. See p26 where in the complainant contradicted himself saying that appellant never confirmed giving such instruction when asked by Assistant Mangoma and Chief Superintendent Nyamupaguma. The complainant was therefore not consistent on this issue.

(b) The complainant did not at any point hear or witness the appellant giving such an instruction.

The Investigation Officer does not seem to implicate the appellant on the non-detention of the suspect and his release but implicates Fiyero Masara.

Assistant Commissioner Mangoma and Chief Superintendent Nyamupagamu were told of the appellant's involvement by the complainant, and, in their conversation with the appellant, the appellant does not admit giving such an instruction.

If the court a quo had closely gleaned at the evidence led it would have noted that a higher court analysing the same evidence may arrive at a different conclusion.

The appellant is attacking the grounds upon which he was convicted. His argument is that the complainant was in love with the accused. The complainant was also in love with one Mandovha who is said to be a star witness in this case. It was the appellant's argument that this was a case of a love triangle that went bad and the complainant wanted to fix him….,.

The prosecution agrees with the appellant that the manner, facts, and circumstances of the commission of this offence, the report and arrest of the appellant leaves one with some doubt if indeed a rape was committed or not. In particular, despite having been told of the identity of the attacker she did not make the report to the police or her husband, a person she would reasonably be expected to make a report at the earliest possible opportunity.

In her evidence, the appellant was portrayed as a stranger. But in the light of the appellant's defence one is left with the following questions unanswered. If the complainant knew the appellant as someone who sold eggs at her workplace every day some years back why did she not just tell Mandovha that she knew the attacker but did not know his names? If, on the other hand, Mandovha correctly identified the appellant as the rapist on the day of the rape why did it take several days before the report was made? Why did Mandovha, who is said to be a total stranger, undertook to investigate the matter himself without reporting to the police since he said he was a member of the neighbourhood watch committee?

We therefore agree that this is one case in which doubt still remains whether the appellant committed the offence or it was a 'love triangle' gone bad as alleged by the appellant. We doubt if the presence of Mandovha at the scene of the rape was just a coincidence.

We agree with the prosecution that it is trite that the cautionary rule in sexual offences is no longer part of our law, but, as noted in S v Banana 2000 (1) ZLR 607, each case has to be treated on its own facts. The onus of the State, in all criminal cases, still remains to prove, beyond a reasonable doubt, the guilty of an accused.

Even if we may be wrong, which we doubt we are, we are fortified in our belief by the dicta of the court in L v V 2003 (1) SA 16 (SCA) where it was said -

“In my view, there is simply not enough evidence to prove the appellant's guilty beyond a reasonable doubt; the result will, of course, be a grave injustice if the appellant in fact raped the complainant. But that does not justify the commission of an even more serious injustice of convicting a person without his guilty having been established beyond reasonable doubt.”

The correct legal position is that in criminal trials, conviction should only be returned when the State has proved its case beyond reasonable doubt.

In casu, the appellant's challenge that he did not rape the complainant as he was not present at the relevant period was not discredited by the State, which should have been the case, as it is the State which has the burden of proving the commission of an offence beyond reasonable doubt.

The learned trial magistrate seems to have accommodated the supposed date of the commission of the offence - which was not proper. She further went on to express an opinion on medical matters when she was not qualified to do so. This court has previously decried the temptation by judicial officers to express medical opinions when they are not qualified to do so. 

Again, this practice, is discouraged.

She, together with the State seem to have fallen in the trap that it is the appellant who should prove his alibi yet it is the State which should have done so, by calling witnesses whom the appellant suggested he was with at the relevant time.

It is my considered opinion that there were a lot of loopholes in this matter which made a conviction unsafe….,.

In dealing with this case, I am mindful of the often quoted words of GREENBERG J by WATERMEYER AJA in the much celebrated case of R v Dofford 1937 AD 772..., where the learned judge remarked as follows:

“…, no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt is false. If there is any reasonable possibility of his explanation being true, then he is entitled to an acquittal.”

It is with these elementary guiding principles that I will make an attempt to deal with the evidence that was presented in this case in our effort to answer the simple issue that we had to grapple with for the three days which we devoted to this case – who killed the deceased?...,.

Shingairai Shoko's story began with her going into labour on the night of 29 April 2013 and her subsequent delivery of the deceased that same night. It was her undisputed evidence that when she delivered, the deceased was alive, a position which was well supported by the accused.

There was a divergent of explanations as to what happened when the witness delivered her baby. The witness's evidence was that immediately after delivery, the accused sent her to collect a sack but upon her return to the place of birth she found the deceased no longer breathing. She pointed a finger at her mother as having killed the deceased.

The witness further testified that once she gave the accused the sack she went home to sleep leaving the accused to deal with the burial of the deceased, and that she did not know where the deceased's remains were interred.

As a court, we had extreme difficulties in following this witness's evidence, particularly when she professed ignorance of where the deceased's remains were buried and her attempt to shift the exclusive knowledge of that spot to her mother, the accused. This position was refuted by Robert Togara, whose credibility the court found to have been beyond reproach. It was equally significant that initially the witness advised the court that she did not know the name of the man who was responsible for her pregnancy. It was only when she appeared in court on the second occasion that she suddenly remembered that Lord, or Lot, was the person who impregnated her. It is most unusual that a woman would fail to recognise the person responsible for her pregnancy no matter how her level of intellect is. When the trial unfolded, it dawned on us that, in fact, the deceased was not the witness's first pregnancy but the second one. This inevitably compounded the impact of Shingairai Shoko's testimony.

When confronted by Robert Togara and Shirley Madoro, two members of the neighbourhood watch committee, about what had become of her pregnancy, two or so days after she had given birth to the deceased, her immediate response was to lie to them that she had had a miscarriage in that the birth had manifested itself in the excretion of blood and nothing more. It was only when she could not present evidence of the discharged blood that she shifted goal posts and disclosed that she had given birth to a live baby but that the accused had killed this baby by strangulation.

The alleged strangulation of the deceased became central to the State case because the State case was built around that theory. Even the accused's own undisputed confirmed warned and cautioned statement spoke to the death of the deceased by strangulation.

The difficulty with the position of the State is that it did not accord well with the findings of the post-mortem report…, which gave the cause of death as having been due to head injury.

Of all the witnesses who gave evidence in this case, it was only the accused who gave an explanation that possibly explains the head injury to the deceased.

Her explanation was that the key state witness, Shingairai Shoko, who had all along denied having been pregnant, went into labour under the guise of relieving herself and dropped the fragile deceased whilst in a crouching position with no preparation for birth having been put in place because of Shingairai Shoko's secretive approach to her pregnancy. She said when the deceased was born she fell on a rough surface and she heard her cry once. She further stated that as Shingairai Shoko attempted to lift the deceased she smashed it on the unfriendly earth surface; she could not tell whether this act was a deliberate or accidental one. This explanation would be consistent with the post mortem report and also runs contrary to the method of killing the deceased which is contained in the accused's confirmed warned and cautioned statement.

The accused explained the circumstances surrounding her offer of two goats to the two members of the neighbourhood watch committee. She explained that although she admitted the offence to them all she wanted to do was to protect Shingairai Shoko.

The accused's explanation might be false but it is reasonably true.

We are all agreed that other than the unsatisfactory evidence of the key witness for the State, Shingairai Shoko, this witness is mentally challenged. We all observed this and even her biological mother, the accused, testified to this effect and said it was precisely because of this that she was advised by teachers not to waste her resources sending her to school.

Faced with the evidence of such a witness, being the star witness for the State, who is also an accomplice, we found it unsafe to convict the accused on the main charge of murder….,.

In conclusion, having considered the case, the court is of the unanimous view that the evidence has not established the accused's guilt beyond a reasonable doubt.

She is entitled to an acquittal on the main charge….,.

However, we reckon that in deciding to secretly bury the remains of the deceased, the accused collided with another statutory obligation, viz section 106 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

After the mysterious death of the deceased, the accused and her daughter confirmed to secretly burying the deceased's remains in violation of the law….,.

The accused is found not guilty and acquitted of murder but found guilty of contravening section of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which is a competent verdict to the charge of murder.

Background

The appellant is a maternal aunt to the complainant. On the 26^th July 2009, the complainant and her husband requested the appellant to procure for them 6 beasts. The beasts were in respect of lobola payment for the complainant. The appellant also acted as go-between in this marriage. The appellant agreed to source the beasts and have them delivered to the complainant's parents at Mtshabezi by not later than 31^st August 2009. The appellant engaged the co-accused, one Musa Masuku, who said the beasts were available at Matopo. The appellant was, however, taken to the Zenka area of Nkayi were she was shown 6 beasts. The appellant informed the complainant that she had been shown the beasts in question. On the strength of that assurance, the appellant received the sum of R12,000= for 6 beasts and a further R3,000= for transportation. The appellant then gave her co-accused a total of R8,000= and she withheld R4,000= as a “thank you” for her efforts in securing the beasts. It would seem that the facts clearly established that the appellant was herself a victim of fraud perpetrated on her by her co-accused. She was made to believe that the cattle existed. She acted on that misrepresentation. Of the 6 beasts, only 2 were delivered by the co-accused.

Mr T. Hove, appearing for the State, argued that the court did not err by convicting the appellant on two counts of fraud. It was contended that when the appellant received the sum of R10,000= for the cattle she indicated that they were available in the Matopo area. The cattle were to be delivered at Mtshabezi, at the complainant's homestead. It was argued, further, that the appellant later changed her story and indicated to the complainant that she had found the cattle in the Inyathi area and that she physically saw the cattle in question.

After hearing argument from both counsels, it became clear that there was inadequate evidence on the record to sustain the conviction and sentence. The learned trial magistrate erred in failing to realize that the evidence did not establish the guilt of the appellant beyond reasonable doubt. This so because the mere fact that the conduct of the appellant raised suspicion did not translate into proof of guilt. There is evidence on record to show the appellant's valiant efforts to compel the delivery of the cattle. The appellant made frantic efforts to enforce the sale and in that regard she made a report at ZRP Nkayi and Magwegwe respectively against her co-accused. It cannot be that the reports she made to the police were attempts to cover up for her dishonesty. To the contrary, these reports show that the appellant had absolutely nothing to hide by submitting the matter to the law enforcement authorities. Her conduct is not consistent with a guilty mind. It is also important to observe that before the appellant made payment to her co-accused, she insisted on being shown the six beasts and it was only upon being shown the beasts that she released the purchase price. When the appellant's co-accused attempted to persuade her to collect two beasts instead of six she flatly refused.

In convicting the appellant, the trial magistrate reasoned that the appellant's hands were not clean because she retained for herself the sum of R4,000=. The appellant explained that the R4,000= had been given to her by the “seller” as a token of appreciation for finding them a buyer.

This had nothing to do with the complainant, who had been charged and accepted the figure of R2,000= per beast. It is my view that the payment of this “commission” to the appellant was in itself not unlawful.

In all the circumstances, the appellant raised a defence against the charges which was not controverted by the State. The evidence led during the trial was not sufficient to establish that the appellant and the co-accused acted in common purpose and set out to defraud the complainant.

In his response to the Notice of Appeal, the trial magistrate stood by his findings and indicated that in his view the accused persons were acting in common purpose hence the equal sharing of the “spoils”. 

I cannot agree that the evidence established any common purpose at all. 

I am aware of what the approach is with regard to an appeal court's interference with a trial court's findings on credibility. In the case of George Parkin v Guardian Security Services (Pvt) Ltd SC130-99, EBRAIN JA stated…, as follows:

“It is true that an appellate court is reluctant to interfere with the findings of credibility of a trial court unless the reasons given for accepting certain evidence may be unsatisfactory - Hoffman and Zeffert – The South African Law of Evidence 4^th Edition page 484. The probabilities are important in assessing credibility.”

In casu, the magistrate's reasons are not supported by both the law and the evidence. I have explained that the appellant's defence remained uncontroverted and for that reason she was entitled to an acquittal.

The appellant's legal practitioner did not attend court even though the notice of set down of the appeal was served upon the law firm of Mcijo, Dube and Partners on 18 December 2015. 

Although counsel for the State applied for a dismissal of the appeal by reason of default, we could not accede to that application as we were of the view that there was a possibility that the appellant's non-appearance may have been actuated by the concession made by the prosecution. There is a strong possibility that the appellant's counsel may have assumed that the matter would be disposed of in chambers and that the set down would fall off.

It is as a result of that possible confusion that we directed that the matter be referred to me in chambers so that it may be disposed of therein instead of dismissing the appeal by default. In fact, nothing would have been achieved by proceeding that way when the State was not supporting the conviction. The State has conceded the appeal against conviction in respect of the two counts of fraud and theft.

For that reason the matter should not have proceeded in the manner proposed by the State counsel given that the way it has. It should have been disposed of in terms of section 35 of the High Court Act [Chapter 7:06] which provides:

“Where an appeal in a criminal case, other than an appeal against sentence only, has been noted to the High Court, the Attorney General (read the Prosecutor General), may, at any time before the hearing of the appeal, give notice to the Registrar of the High Court that he does not, for the reasons stated by him, support the conviction, whereupon a judge of the High Court, in chambers, may allow the appeal and quash the conviction without hearing argument from the parties or the legal representatives and without their appearing before him.”

In her heads of argument, counsel for the respondent submitted, after demonstrating how she was drawing such a conclusion, that:

“Ultimately, and regarding the convictions in the two counts, it is conceded that there are gaps in the State's case which gaps could have been plunged (sic) by leading evidence from indicated witnesses, among a plethora of them (who) could have been called to prove the State's case. The net effect of the gaps is that triable issues remain unventilated, making […,.] unresolved and essential elements of the offences charged not proved beyond a reasonable doubt though there was a prima facie case against the appellant. At the end of the day, it is conceded and submitted that the State's case is in shaky ground and that the convictions are not supported as they are seemingly unsafe.”

Having come to that conclusion, the State should have proceeded in terms of section 35 of the High Court Act [Chapter 7:06] and simply given notice to the Registrar of this court that it does not support the conviction. Where such notice is given on an appeal, the Registrar should place the appeal before a judge, in chambers, who, if satisfied, should allow the appeal against conviction and quash the sentence.  That way, space would be created for other deserving and contested appeals to be set down on the roll for determination.

In future, the State should be guided accordingly in order to avoid unnecessarily clogging the appeals roll with matters that should not be set down at all.

The appellant was charged, in the first Count, with fraud, it being alleged that on 27 November 2007, at Dasso Building, Fife Street and 4^th Avenue, Bulawayo he unlawfully and with intent to defraud misrepresented to Million Newa Ndlovu that as a registered estate agent, he was selling stand 7559/10 Tshabalala Township, Bulawayo on behalf of Sophie Mpofu the owner of it and obtained ZWD22 million from Million Newa Ndlovu.

In the second Count, he was charged with theft of ZWD250,000= belonging to Enisha Magaya; the allegations being that on 28 February 2001, he had taken possession of that money, being proceeds of the sale of House Number 6527 Gwabalanda Township, Bulawayo, and, instead of handing the money over to the owner, he converted it to his own use.

In respect of Count One, that of fraud, the State led evidence from three witnesses; Borniface Kaseke, Sophie Mpofu and Fanuel Phiri – none of whom were able to shed light as to whether the appellant made any misrepresentation and to who. In short, the alleged victim, Million Newa Ndlovu, who allegedly bought the house, was not called to testify, leaving a gap in the evidence. Sophie Mpofu is the owner of the house and all she said was that she did not instruct anyone to sell her house. Both Borniface Kaseke and Fanuel Phiri did not incriminate the appellant; with Fanuel Phiri saying all that he knew was that his grandfather's house was sold by unknown people.

On the second Count, of theft, only Elisha Magaya, the owner of House Number 6527 Gwabalanda, Bulawayo gave evidence. All that he said was that the house was sold, firstly, by the appellant and he then tried to cancel that agreement before selling the house himself for the second time. There was nothing in his evidence to suggest that the appellant converted the money to his own use. In fact, the appellant gave an explanation as to what happened to the purchase price, namely, that the buyer took it to his own lawyers where he sought to enforce the agreement. There was no evidence to rebut that assertion.

The point was made by SANDURA JA in S v Kuiper 2000 (1) ZLR 113 (S)…, in considering what the court has regards to in examining the explanation given by an accused person;

“However, quite apart from the effect of the further evidence adduced on appeal, I do not think that the magistrate was justified in rejecting the appellant's version. The test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD 370.  At 373, the learned judge said:

'…, no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal…,.'

Similarly, in R v M 1946 AD 1023, DAVIS AJA said the following at 1027:

'And, I repeat, the court does not have to believe the defence story; still less has it to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true.'”

The court a quo misdirected itself in assessing the evidence in that it does not appear to have bothered to consider whether the State, which bore the onus of proving the guilt of the appellant in respect of both counts beyond a reasonable doubt, had proved such guilt. Quite to the contrary, the magistrate shifted the onus of proof to the appellant for him to prove his innocence. At page 15-16 of the record he reasoned as follows:

“Although accused pleaded not guilty to both counts in this case, and although this has been a lengthy trial, a perusal of the record actually reflects that this is a fairly simple straight forward case in which the accused has failed to come up with a reasonable defence, in that, money was paid and receipts were issued by accused's company…,.. As I have already pointed out, this is a fairly straight forward case in which the accused has failed to come up with a reasonable defence to both Counts; hence accused's defence cannot stand. I accordingly find the accused guilty as charged.”

In my view, this is a very muddled thought process which is very dangerous indeed. The appellant did not have to prove anything. It is the State which had to prove his guilt by leading credible evidence tending to establish all the essential elements of the offences. It is because the magistrate misdirected his thought process that he did not bother to assess the evidence led on behalf of the State to see if a crime was committed. To him, the moment the appellant stood in the dock charged with the offences, he was guilty.  The onus was upon him to 'come up with a reasonable defence' failing which he was guilty as charged.

In that regard, the concession made by the State is properly made. The conviction, in respect of both Counts, cannot stand. With it, the attendant sentence must also go.

In the result, it is order that;

1. The conviction of the appellant on one count of fraud and one count of theft is hereby set aside.

2. The sentences are hereby quashed.

Even if I were wrong in drawing that conclusion, I would still find the appellant not guilty for another reason.

It is that the two State witnesses gave mutually destructive evidence which was contradictory to such an extent that the court should not have convicted on it. The first witness, Thandokazulu Ngwenya testified of the theft of his employer's bull. The second State witness, Tafadzwa Richard Marufu was adamant that the appellant purchased the bull. His evidence was not impeached, but the court, in its wisdom, still convicted the appellant. 

It could not do that.

To the extent that the State evidence was contradictory, it follows that the State failed to prove its case beyond a reasonable doubt. No court should convict on the basis of such blatantly unreliable evidence. For that reason, there is merit in all the grounds of appeal set out by the appellant.

In the result, it is ordered that;

1. The appeal against conviction is hereby upheld.

2. The conviction is hereby set aside and the sentence quashed.

The deceased, Mandanda Mudenda, of Njobola Village in Binga District lost her life in unclear circumstances on 30 November 2014.

The accused, who happens to be the deceased's son, stands accused of having caused the deceased's death through assault which allegedly occurred on the evening of 25 November 2014. The assault was alleged to have occurred about 50 metres away from the deceased's homestead.

The postmortem report (exhibit II) gave the possible cause of death as intracranial haemorrhage and head injury caused by assault.

Exhibit I opined that the accused had a history of mental challenge and that it was reasonably possible that at the time of the alleged assault the accused was suffering from a mental disorder to the extent that, in the psychiatrist's opinion, the accused must not be held criminally responsible for his actions.

The State case was built around the viva voce evidence of Draw Muleya and Frank Siambeta, the accused's two neighbours, who testified that they both saw what happened on the night of the 25^th of November 2014. The witness' evidence was meant to confirm the deceased's assault by the accused on the evening in question.

Contrary to the allegations of the State, the accused denied ever assaulting the deceased. The accused alleged that on the evening in question he heard the deceased screaming and rushed to the scene to investigate the cause of the noise. When he got to the scene, the accused claimed that the deceased, who was hopelessly drunk, revealed to him that she suspected she had been given poisoned beer and that she had difficulties standing on her own. The accused alleged he battled to raise her from the ground to no avail as on two occasions she ended up falling down from his grip. He said he did this until the two key State witnesses arrived close to the spot where the deceased was.

It is not in dispute that the accused had a history of mental challenge in this case….,.

The thrust of the State case was that the deceased was assaulted by the accused in the manner described in dramatic fashion by the second witness, Frank Siambeta, who said that from about eight (8) metres he and his colleague, Draw Muleya, saw the accused holding the deceased by the throat or neck smashing her to the ground remarking that she should not play with a buffalo or lion. The witness said the accused repeated this manner of assault several times. When it was suggested to this witness that the accused was not assaulting the deceased but was merely trying to assist her rise from the ground, the witness retorted that this was not so as the accused was habitually given to assaulting the deceased.

It is not in dispute that the first witness was non-committal on the assault itself as described by the second witness. The first witness, when asked by the court as to whether or not he had seen the accused assaulting the deceased, was quite forthright. In his own words he retorted;

“I did not see the assault. I just saw him lifting her up and down.”

The conclusion that the court has been urged upon to make by the State counsel to accept is fraught with a number of challenges. The acceptance of the evidence of Frank Siambeta suggests that the accused was viciously assaulting the deceased. The accused countered this by suggesting that if indeed he had assaulted the deceased there should have been extrinsic evidence to support that in the form of visible wounds on the deceased or some bleeding on her. The police officer who visited the deceased in hospital saw no wounds. The nurses who attended the deceased appeared not to have seen these wounds.

In fact, none of the witnesses testified to the existence of any wounds.

The position must then be juxtaposed by the stance taken by the accused bearing in mind that, at law, the accused has no onus to establish his innocence but is merely required to cast doubt on the State case by giving an explanation which is reasonably and possibly true. As DAVIES AJA succinctly puts it in Rex v M 1946 AD 1023…,.;

“And I repeat, the court does not have to believe the defence story; still less has it to believe it in all its details, it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true.”

I may add and say that the only time that the court can reject the story told by the accused is when the court is convinced that that story is palpably false.

The accused stated that he was merely battling to raise her mother, the deceased, from the ground but because of her drunken stupor he found it hard to do so.

The reluctance or hesitance by the first witness to commit himself on the assault would tend to lend credence to the accused's stance.

The accused explained that as he battled to raise his mother he uttered words likening her mother's going for a beer drink to a person voluntarily entering a place infected with either lions or buffalos. The accused, through his counsel, argued that it was quite possible that his utterances were noted out of context. 

This argument is indeed persuasive in our view….,.

It does seem to us that when the two State witnesses saw the accused trying to lift the deceased their minds were flooded by the past history between the accused and the deceased and with that heavy prejudice they wrongly concluded that the accused was assaulting the deceased. That bias is understandable but should not be allowed to carry the day because of the convincing counter-explanation given by the accused person.

In my view, nothing much tends on exhibits I and II. The accused explained that when exhibit II was compiled, there was a possibility that the doctor may have missed what he intended to convey by making reference to the deceased's mother instead of his maternal aunt. It is quite possible that a nurse who is not trained as an interpreter may have genuinely created the unintended confusion to the innocent doctor.

Exhibit I must not confuse anyone.

The compilation of that exhibit was largely influenced by the nature of the report the doctor/pathologist got. The pathologist had in mind an assault and not a poisoned drink when he carried out his examination report. The pathologist was not expected to carry out an examination on beer poisoning because he was never made aware of that as a possibility of the cause of the deceased's death.

It was still possible, even in these proceedings, to call the pathologist to deal with the issue which was now being raised by the accused; that the deceased had suggested she had drunk poisoned beer. In the absence of that counter explanation it remains a possibility that the deceased may have died as a result of having partaken of poisoned beer….,.

We all had an opportunity to hear and see the accused giving his evidence in court. The question at the end of the day must be;

“Is the accused's explanation reasonably possibly true?”

In my view, the answer ought to be in the affirmative. Consequently, the State has not discharged the required onus to justify a conviction on the evidence presented to us.

It is not possible, in these circumstances, to even say that the act of assault itself has been established beyond a reasonable doubt.

The concession by counsel for the State, at the close of the State case, that the State had not been able to prove the charge of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is  not only properly made at law but professional.

It is an established rule of procedure in a criminal trial, consistent with the audi alteram partem rule, that once the State has established a prima facie case pointing to the likelihood of the accused being guilty of the offence charged, the onus shifts to the accused to rebut the operation of the evidence led against him.

When placed on his defence, the accused is not being called upon to prove his innocence but to rebut the operation of State evidence suggesting that he is guilty of the offence charged.

An accused person's defence should not be disbelieved by the court and rejected where what the accused person proffers as a defence cannot be dismissed as improbable, unreasonable and possibly untrue….,.

The required standard of proof beyond a reasonable doubt was aptly put in the case of S v Makanyanga 1996 (2) ZLR 231. The court in that case stated thus:

“A conviction cannot possibly be sustained unless the judicial office entertains a belief in the truth of a criminal complaint, but the fact that such credence is given to the testimony of the complainant's testimony does not mean that conviction must necessarily ensue. Similarly, the mere failure of the accused to win the faith of the Bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant be believed and accused disbelieved. It demands that a defence succeeds wherever it appears reasonably possible that it might be true.”….,.

The test to be applied in determining whether the accused's version is substantially true was set out succinctly by GREENBERG JA in R v Difford 1937 AD 370. At 373, the learned Judge of Appeal stated that:

"…., no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal…,."

See also S v Dube 1997 (1) ZLR 229 (H)…, and S v Manyika HH215-02…,.

It occurs to me that the presiding magistrate was correct in his interpretation of section 70(1)(i) of the Constitution.

Perhaps what needs to be clarified is that an accused person who chooses to invoke this section at the close of the State case must be understood to be adopting his Defence Outline as his spoken evidence under oath. This would be so because when an accused person elects to give evidence at the close of the State case, what he will be doing is to expand on his Defence Outline already forming part of the record of proceedings.

The decision by an accused not to give evidence is simply an indictment to the prosecution to present its case in such a way that with or without the additional evidence of the accused other than his Defence Outline, the court must be able to secure his conviction. The State cannot wait for the accused person to give evidence, as it were, in order for it to secure a conviction. The State's case must be sufficient on its own and unaided by the accused person's evidence.

Sufficiency of evidence is the amount of evidence required for a conviction. This is a matter of law. It is not concerned with whether the evidence is truthful or reliable. There may be sufficient evidence for a conviction, yet the judge or jury may choose to acquit an accused because of the quality of that evidence.

For a person to be convicted of a crime there must be:

(a) At least one source of evidence, e.g. the testimony of a witness, that describes the commission of the crime and points to the accused as the perpetrator; and

(b) An additional source of evidence, e.g. the testimony of at least one other witness, which confirms or supports the first source in respect of each of these two essential or crucial facts, i.e. that the crime was committed and that the accused was the perpetrator.

The sources may consist of direct (eyewitness) evidence or indirect (circumstantial) evidence.

With regard to proof beyond reasonable doubt, it was stated in the case of Isolano 1985 (1) ZLR 62…, that:

“The State is required to prove the guilt of the accused beyond reasonable doubt; proof beyond reasonable doubt requires more than proof on a balance of probabilities. It is not, however, proof to an absolute degree of certainty or beyond a shadow of doubt. When there is proof beyond reasonable doubt no reasonable doubt will remain as to the guilty of the accused. If a reasonable person will still entertain a reasonable doubt as to whether accused is guilty, the accused is entitled to be acquitted. Fanciful or remote possibilities do not introduce a reasonable doubt.”

Professor G. FELTOE, in the Judges Handbook, 2009 Edition…, states as follows on proof beyond reasonable doubt. He quoted the case of Isolano 1985 (1) ZLR 62 that I have referred to herein and then expands on that point as follows:

“To be reasonable doubt, the doubt must not be based on pure speculation but be based upon a reasonable and solid foundation created either from the positive evidence or gathered from reasonable inferences not in conflict with or outweighed by the proved facts.”

He goes on to say -

“It is not necessary for the State to prove every single individual fact in a criminal case beyond reasonable doubt although the State must prove beyond reasonable doubt a fact which is particularly vital and upon which the whole case hinges. The question which needs to be asked is:

Do all the facts, taken together, prove guilt beyond reasonable doubt?

Even a number of lines of inferences, none of which would be decisive, may, in their total effect, lead to there being proof beyond reasonable doubt.”

The duty of the State in any prosecution is to prove beyond a reasonable doubt that an accused had committed the crime charged.

The test to be applied before a court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD…,. and quoted with approval in S v Chidunga SC21-02 as follows:

“No onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

In S v Makanyanga 1996 (2) ZLR 231, GILLESPIE J remarked that:

“Proof beyond a reasonable doubt demands more than that a complainant should be believed and the accused dis-believed. It demands that a defence succeeds whenever it appears reasonably possible that it might be true.

This insistence upon objectivity far transcends mere considerations of subjective persuasion which a judicial officer may entertain towards any evidence. The administration of justice would otherwise be the hostage of the plausible rogue whose insincere but convincing blandishments must prevail over the stammering protestations of the truth by the diffident, frightened, or confused victim of false incrimination.” …,.

In State v Van der Merwe 1990 (1) SACR 447, the court commented on the approach to be adopted in evaluating and weighing the evidence adduced by the State and by the defence as follows:

“The proper test is that an accused is bound to be convicted if the evidence established his guilt beyond a reasonable doubt and the logical corollary is that he must be acquitted if it is reasonably possible that he is innocent. The process of reasoning which is appropriate to the application of the test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion reached (whether to acquit or convict) must account for all the evidence. Some of it may be found to be false, some of it might be found to be unreliable but none of it may simply be ignored.”…,.

In our jurisdiction, the locus classicus is S v Makanyanga 1996 (2) ZLR 231 H where GILLESPIE J stated that:

“A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of a criminal complaint but the fact that such credence is given to testimony for the State does not mean that conviction must necessarily ensue. Similarly, the mere failure of the accused to win the faith of the Bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant should be believed and the accused disbelieved.

It demands that a defence succeed whenever it appears reasonably possible that it might be true.

This insistence upon objectivity far transcends mere considerations of subjective persuasion which a judicial officer may entertain towards any evidence. The administration of justice would otherwise be the hostage of the plausible rogue whose insincere but convincing blandishments must prevail over the stammering protestations of the truth by the diffident, frightened or confused victim of false incrimination.”…,.

In casu, I take the view that since the evidence is equi-poised there is a reasonable possibility that the appellant's defence might be true.

There has to be a reason why the accused was at pains to invent theories about how his daughter met her death when he did not have to really….,.

In our law, no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the court is not at liberty to convict unless satisfied, not only that the explanation is improbable but that beyond any reasonable doubt it is false. See R v Difford 1937 AD 370…,.; R v M 1946 AD 1023…,.; S v Pisirayi HB121-16.

This case was so mis-managed by those charged with the responsibility of bringing offenders to book who displayed a lackadaisical approach to criminality which is unprecedented. As it is, the deceased, who may have died for nothing when the law of the jungle was applied and vigilante justice took over, will never see real justice.

The State is not required to prove, beyond a shadow of a doubt, the guilt of the accused person; but, a reasonable man looking at the facts objectively must come to the conclusion that “reasonable doubt” has been eliminated and that there could be no danger of false incrimination.

In my view, prevailing upon an accused person, who has pleaded not guilty to the charge, to accept a charge which was not put to him, even without the State leading any evidence to prove the charge, is a substantial miscarriage of justice. Where the prosecutor comes to court expecting a guilty plea but the accused surprises him by pleading not guilty, as happened in this case, he cannot elicit the assistance of the court to help him persuade the accused person to see the light. The prosecutor must get on with the business of presenting the State case. If he has not brought his witnesses, the right thing to do is to seek a postponement to secure the attendance of witnesses.

This is because where the accused pleads not guilty the onus is on the State to prove every averment in the charge in order to secure a conviction unless the accused person relieves him of part of the burden by admitting to certain facts….,.

It occurs to me that where the State abdicates its responsibility of proving the averments in the charge, the end result is that envisaged by section 9 of the Criminal Procedure and Evidence Act which states:

“The Prosecutor General may, at any time before conviction, stop any prosecution commenced by him or by any other person charged with the prosecution of criminal cases but, if the accused has already pleaded to any charge, he shall be entitled to a verdict of acquittal in respect of the charge.”…,.

To the extent that the prosecutor stopped the prosecution without leading evidence on the guilt of the accused meant that the accused was entitled to a verdict of not guilty.

The trial magistrate, in her judgment, places an onus on the accused person to prove his innocence….,.

An accused person's defence can only be rejected if it is improbable, unreasonable and not possibly true.

In the case of S v Makanyanga 1996 (2) ZLR 231 the court summed it up as follows:

“A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of the criminal complaint, but, the fact that such credence is given to the testimony of the complaint does not mean that conviction must necessarily ensure. Similarly, the mere failure of the accused to win the faith of the Bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant be believed and an accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true.”…,.

A court cannot cast any onus whatsoever on an accused person to prove his defence. Refer to the case of Machakaire v S SC30-92.

In our law, the State has to prove the guilt of an accused person beyond reasonable doubt.

Proof beyond reasonable doubt does not translate to proof beyond a shadow of doubt. Proof beyond reasonable doubt does not mean proof of an absolute degree of certainty. It simply means that there should be such proof as leaves no reasonable doubt in the mind of an ordinary man capable of a sound judgment and of appreciating human motivations. The State does not have to close every avenue of escape and fanciful or remote possibilities.

See the case of S v Isolano 1985 (1) ZLR 62 (S).

In a Criminal Court…, the guilt of the accused to the crime charged has to be proved, not only by showing the existence of the two components, actus reus and mens rea, but also by proving them beyond any reasonable doubt….,.

The State should not cherry pick facts selectively and ignore those that may be inconvenient.

The conviction of the accused is clearly unsafe as the State failed to prove the rape charges against the accused to the required standard of proof in criminal matters.

The State case is clearly plagued with insurmountable problems.

To start with, all the civil witnesses disowned the statements alluded to them. They disowned the signatures on those statements - especially Darlington Gift Mabika (Gift) who commented on the signature. This was indeed worrying to the court. Why would these simple rural people who had no discernible interest in how this matter would be resolved disown the statements they allegedly made? No possible motive was given or suggested.….,.

No wonder the investigating officer, D/Cst Riva, conceded that he could not disprove the accused's version of events - especially that he acted in self-defence….,.

The State, in our view, has not been able to meaningfully disprove the accused's version of events…,.

It has not been shown why the accused's version…, is false….,.

It is our view that the State has failed to negate the plea of self-defence. The doubt should have resolved in favour of the accused.

It is settled law that the State must prove its case beyond reasonable doubt. Where the accused person raises a defence, the court should not reject such defence unless the version cannot reasonably be possibly true.

The sixth and seventh grounds also raise the same issue; which is to the effect that the trial magistrate erred in failing to appreciate that the defence raised by the appellant was plausible and that it left a very remote possibility that the complainant could have been raped in the toilet where everyone at the house had access and at that time of the day.

Defence counsel said, on the authority of R v Difford 1937 AD 370, no onus rests on an accused person to convince the court of the truth of any explanation given by him….,.

Not when the State has led such damning and incriminating evidence as to allow no other inference to be drawn except that of guilty as charged. 

The evidential onus shifts to the accused….,.