After hearing arguments in this criminal appeal we upheld
the appeal against conviction and sentence, substituted the conviction and
sentence of the appellant with a verdict of not guilty and acquitted him. We
said that the reasons for that outcome would follow.
These are they.
The appellant, and one other, were arraigned before a
magistrate at Bulawayo on a charge of stock theft in contravention of section 114
of the Criminal Law Code [Chapter 9:23]. It was alleged that, on a date unknown
to the prosecutor but during the period extending from 2011 to October 2013,
himself and one Victor Nyoni had stolen a bull belonging to Thandokazulu
Ngwenya at some grazing area in Fort Rixon.
The facts were that he had driven the bull to a neighbouring homestead
belonging to Adage Gumbo where he kept the bull for sometime before selling it
to Adage Gumbo who later branded it with his own brandmark.
After hearing evidence from two State witnesses,
Thandokazulu Ngwenya and Tafadzwa Richard Marufu, three defence witnesses for
the appellant and two for Victor Nyoni, the co-accused, the court a quo
convicted both of them and sentenced each to the mandatory nine (9) years
imprisonment having found no special circumstances as would inform the
preference of a sentence other than the mandatory one.
The appellant was aggrieved by both the conviction and
sentence. He then lodged an appeal to this court against both conviction and
sentence. The grounds of appeal against conviction are set out in the Notice of
Appeal as:
“AD CONVICTION
1. The court a quo erred and misdirected itself in law in
finding that the State had proved its case beyond reasonable doubt when in fact
it had not.
2. Having made a factual and judicious finding that the
appellant purchased the bovine bull in issue from his co-accused, the court a
quo erred and misdirected itself at law in inferring common purpose amongst the
two notwithstanding their irreconcilable and incompatible versions of what
transpired.
3. Moreso, having made a factual and judicious finding that
the second accused knew the identity of all the complainant's beasts and his
earmark, the bovine bull in question included, and also having concluded that
the second accused's lies and prevarications on material respects supported the
appellant's version, the court a quo erred and misdirected itself further in
finding the existence of common purpose, moreso also considering that the
evidence available did not support the second accused's defence that he had
given the appellant the bull in issue because the appellant claimed the bull
was his.
4. The court a quo erred and misdirected itself at law in
overly emphasizing the issue of police clearance as if it were legally a
pre-requisite for the sale or purchase of stock.
5. The court a quo erred and misdirected itself in
disregarding off-hand the evidence of the second State witness and the
appellant's defence witness merely on account of their relationship to him
without making any credibility findings.
6. The court a quo erred and misdirected itself in basing
its judgment on speculation and conjecture by placing reliance on extraneous
and unproved facts to establish dolus eventualis.”
In her heads of argument, counsel for the appellant
submitted that the appellant's co-accused was shown to have lied when he said
that he had released the bull to the appellant because the latter had claimed
it as his after it had strayed to his herd. Those lies therefore corroborated
the evidence of the appellant that he had in fact bought the bull from his
co-accused. In making the point that lies told by an accused person in court
may provide corroboration, counsel for the appellant relied on the authority of
S v Mhlanga 1987 (1) ZLR 70 (S)…, where DUMBUTSHENA CJ said;
“To be capable of amounting to corroboration the lie told
out of court must first of all be deliberate.
Secondly, it must relate to a material issue. Thirdly, the motive for
the lie must be a realization of guilt and a fear of the truth. The jury should,
in appropriate cases be reminded that people sometimes lie, for example, in an
attempt to bolster up a just cause, or out of shame or out of a wish to conceal
disgraceful behavior from their family. Fourthly, the statement must be clearly
shown to be a lie by evidence other than that of an accomplice who is to be
corroborated, that it so say by admission or by evidence from an independent
witness.”
It was further submitted, on behalf of the appellant, that
he had given a reasonable defence that he had purchased the bull from his
co-accused for $300=; he had kept it for more than 1 and a half years in the
open; and had not bothered to seek a police clearance for it because he trusted
his neighbour who sold it to him. The court could not reject the appellant's
version because he had no onus to convince the court of the truth of any
explanation that he gives: R v Difford 1937 AD 370…,.. It is sufficient that
there is a reasonable possibility that the explanation may be substantially
true: R v M 1946 AD 1023…,.; S v
Kuiper 2000 (1) ZLR 113 (S)….,.
Counsel for the respondent submitted that the appellant had
offered what she termed a “cut throat” defence which the court a quo was able
to sift through and correctly found that he and his co-accused had acted in
common purpose, and, as such, the conviction should not be interfered
with.
I do not agree.
Navigating the way towards conviction, the magistrate made
quite startling observations. At pages 13–14 of the record she stated:
“The parties (were) neighbours, the inference that can be
safely drawn is, they knew each other's earmarks and brandmarks. They lived so
close that Accused Two had room, as had been tradition, to advise the
complainant that a bull was in his kraal yet he did not. He turned out to be a
grossly unreliable witness, did not stand his ground. It then came out in
evidence that Accused Two had a prior meeting with Accused One during which
meeting the bull was discussed and the arrangement of collection made. It therefore crashes accused's defence and
places him right where his co-accused placed him; that he sold him the bull.
And clearly he had no right to sell the bull. Accused One took control of the
bull from Accused Two; he assumed control, His argument is that he thought he
was buying the bull from the owner. This defence he maintained till the very
end. He called a witness to confirm his story, though the court exercised
caution with the evidence of this witness due to the relations between them. To
this extent, the court believed that he could have bought the bull.
The question is, does this sell (sic) connect Accused One
with Accused Two's intent to deprive the owner permanently of his bull? Did the
accused have the requisite state of mind?
Having evaluated the evidence before the court, it is now
vital to address the issues of law aligned to the proven or established facts.
The questions before the court are whether or not Accused One and Accused Two
acted in common purpose to deprive the complainant of his property. This
involves the question whether either or both accused had the requisite mens rea
to commit the offence charged. For the doctrine of common purpose to apply it
should be established that Accused One participated with Accused Two's crime
(or vice versa) with the necessary mental state that is that either of the
accused persons participated or foresaw that the other was committing the crime
in question. Where the accused have not actually agreed in advance that the
crime in question will be committed but foresees the real possibility that the
crime will be committed, the accused would be guilty of the crime committed by
the other on the basis of legal intention i.e. dolus eventualis. Dolus
eventualis is whereby accused foresees the possibility of a result but however
he reconciles himself with that possibility i.e. accused consciously accepts
the risk.”…,.
It is not easy to follow the magistrate's line of reasoning
or what it is that she was saying. Legal expressions are thrown all over the
place on facts to which they scarcely apply thereby betraying a very muddled
thought process. In all the maze of confusion, the magistrate only succeeded in
confusing herself and in the process misdirected herself sharply.
Whatever it is that she was saying what is clear is that
she found Victor Nyoni to have lied and the appellant to have told the truth
and she believed him. She then proceeded to make a finding, which she could not
at the same time run away from; that Victor Nyoni sold the bull to the
appellant.
Having arrived at the conclusion that the appellant bought
the bull, she could not at the same time conclude that the appellant and Victor
Nyoni acted in common purpose in stealing the bull from the complainant for
which the appellant could also be found guilty of stocktheft. The doctrine of
common purpose is a simple one and it is now wholly codified in Chapter XIII of
the Criminal Law Code [Chapter 9:23] dealing with participation or assistance
in the commission of crimes. Basically, liability arises out of two or more
persons knowingly associating with each other with the intention that each or
any of them shall commit a crime.
In my view, it is not possible for one to purchase an item
which then turns out to have been stolen while at the same time knowingly
associating with the seller with the intention of stealing. It just does not
make sense.
At page 17 of the record, the magistrate made the
pronouncement:
“No direct evidence establishes that Accused One and Accused
Two acted in common purpose. This conclusion can only be inferred from the
circumstances discussed above. The evidence connecting the two is purely
circumstantial.”
She then went on to misapply the concept of circumstantial
evidence.
Again, the rules governing the use of circumstantial
evidence are fairly simple. As stated by the learned authors HOFFMAN and ZEFFERT,
The South African Law of Evidence, third
edition, Butterworths,…,:
“In R v Blom, WATERMEYER JA referred to two cardinal rules
of logic which governed 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 to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the inference
sought to be drawn is correct.”
See also S v Vhera 2003 (1) ZLR 668 (H)…,; S v Dzira HB49-11;
S v Moyo and Another HB162-11.
The court a quo inferred the offence from the proved facts,
namely, that the appellant and the complainant were
neighbours; that the appellant did not seek police clearance of the beast after
purchasing it and that the appellant kept it for a long time before branding
it.
In my view, that was not the only inference to be drawn.
In fact, the proved facts point in a completely different
direction, that of the appellant's innocence. He paid $300= for the beast
before driving it across to his home where he kept it in the open for several
months. He later branded it without
attempting to conceal the original earmark. This is not the conduct of a guilty
person. In addition, he gave a reasonable explanation for not seeking police
clearance even as he bore no onus to prove the truthfulness of the explanation;
S v Kuiper 2000 (1) ZLR 113 (S)…,.
In any event, the moment the magistrate made a finding that
the appellant bought the bull, she could not, at the same time, find him guilty
of stock theft together with the one who sold it to him. Perhaps another crime
could have been preferred, but, unfortunately, there is not even a permissible
verdict to stock theft in terms of section 275 as read with the Fourth Schedule
to the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The inquiry should therefore end there.
