This is an appeal against the decision of the magistrate,
who, after convicting the appellant on a count of the crime of assault,
sentenced the appellant to 12 months imprisonment, 4 months of which were
suspended on the usual condition of future good conduct leaving the appellant
to serve an effective prison term of 8 months.
The appellant was not satisfied with both the conviction
and sentence. He accordingly noted an appeal with this Honourable Court. The
grounds of appeal, which he supported in his heads of argument, are that -
1. The court a
quo erred by accepting the evidence
of the complainant in relation to the cursory identification of the appellant,
and the fact that he was wearing white gumboots.
2. The court a quo further erred by accepting the evidence
of Maxwell Kapara, the complainant's husband, as there were chances of
collusion.
3. The court failed to compel the State to call the
complainant's sons to testify.
4. The court a quo further erred by accepting the evidence
of the arresting detail, Constable Isaac Hore, relating to the circumstances
surrounding the recovery of the knife….,.
The respondent opposed the appeal against conviction….,.
The appellant pleaded the defence of mistaken identity. The
fact that the complainant was stabbed with a knife was proved beyond a
reasonable doubt. The medical report…, confirmed that.
The issue is whether the appellant was the one who stabbed
the complainant or not.
The facts revealed by the record were that the offence
occurred at about 7.00pm.
The appellant, at that time, was in the company of two
other work persons. The appellant was wearing a pair of white gumboots. He
proposed love to the complainant who turned the proposal down, shouting at the
appellant in an angry manner. The appellant then stabbed the complainant on the
hands with a small silver knife. The appellant ran away from the scene. He was
pursued by a mob of people who apprehended, and assaulted, him.
The appellant, in his defence, said, at about 6.00pm he
left his tuckshop and boarded a commuter bus to go home. He disembarked at
corner-store and whilst on his way home two young men approached and robbed
him. They stabbed him with a knife on the arm and head. They dealt a blow on
his other arm with a metal object as well as on his head and he fell down as he
was partially unconscious. His attackers looked for a motor vehicle to ferry
him to the police station framing him as a thief. He was ferried to hospital
from where he was discharged on 16th December 2013. When he went to
report the robbery which had occurred to him, the police told him that they
were looking for him in connection with the present case.
Having considered the written and oral submissions as well
as the evidence in the record, I am of the view that the conviction in casu
cannot be faulted.
The complainant said that she identified the appellant
because of the white gumboots. She indicated that the appellant was her
assailant because after people ran after the appellant, who was now running
away, as she was screaming for help, they apprehended him and a knife fell down
from his pocket. She however, said she did not identify his face as it was 7.00
pm. She maintained that she identified the appellant with his white gumboots,
and the tuckshop battery-powered light which was at the verandah. She, however,
said the lights were bright to such an extent that one could only see the front
of the tuckshop. She said she identified him further by his height as well as
his big nose, though there was human traffic at the spot, of people who were
disembarking from buses.
Maxwell Kupara, the complainant's husband, did not collude
with his wife. He was a credible witness. He admitted that he did not see his
wife being assaulted. He only later saw the appellant after the latter was
apprehended by a mob of people. That is the moment he noted that the appellant
was putting on white gumboots. He then saw the knife that was recovered from
the appellant. His evidence was to the effect that his two sons were at home at
the time the complainant was stabbed, hence the sons did not rob the appellant.
The arresting detail, Constable Isaac Hove, corroborated
the fact that when he searched the appellant, at the time he was brought to
Epworth Police Station at about 9.00pm on the 17th of December 2013,
he recovered a silver knife in his pockets. He noted that the appellant was
wearing a pair of green trousers, t-shirt and white gumboots.
It is, therefore, pertinent to note that the appellant
passed by the complainant's tuckshop at the material time. He was putting on
white gumboots. The complainant was then stabbed by a man putting on white
gumboots. The man was apprehended immediately, after a chase, and a knife was
recovered. All this cannot be explained on the basis of coincidence. Further,
it could not have been a coincidence that the appellant was being robbed by the
complainant's sons. The court a quo cannot be faulted for dismissing the
appellant's averment. It does not make sense that robbers would rob a person,
injure him and then ferry him to the police. The correct position, as found by
the court a quo, is that the appellant was chased by members of the public who
apprehended him after he stabbed the complainant and took him to the police.
The court did not misdirect itself when it
convicted the appellant.
