This
is an appeal against conviction and sentence….,.
After
hearing both parties, we quashed the conviction and set aside the
sentence indicating that our reasons would follow. These are they.
The
appellant appeared before a magistrate at Victoria Falls facing the
following charges:-
“Contravening
section 174(1)(a) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. In that on the 28th
day of July 2014, and at Victoria Falls Border Post, the accused
person, Edmore Nyarugwe, who is a police officer, unlawfully did an
act which is contrary to his duties as a police officer, that is to
say, accused accepted $300= from Tariro Mundozo in order to
facilitate smuggling of various goods into Zimbabwe without paying
duty at the border.
Alternatively;
Contravening
section170(1)(a)(i) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]; Bribery. In that on the 28th
of July 2014, and at Victoria Falls Border Post, the accused, being a
police officer, unlawfully agreed to accept for himself $300= as an
inducement for omitting to do any act in relation to his principal's
affairs, that is to say accused accepted $300= from Tariro Mundozo in
order to facilitate smuggling of various goods into Zimbabwe without
paying duty at the border contrary to his duties as a police officer
manning the border post.”
Despite
pleading not guilty, the appellant was convicted and sentenced to pay
a fine of “US$400=, or, in default of payment, 6 months
imprisonment. In addition, 3 months imprisonment suspended for 3
years on condition the accused does not within that period commit any
offence involving criminal abuse of office as an element [and for
which] upon conviction he is sentenced to imprisonment without the
option of a fine.”
The
State alleged that on the day in question, the appellant “came into
contact” with Tariro John Mundozo, Augustine Chasaya and Ronald
Chasaya who offered him a $300= bribe to facilitate their entrance
into Zimbabwe with their truck containing goods without declaring its
contents to ZIMRA officials at the border. The appellant is further
alleged to have offered Rufaro Mvududu, a ZIMRA official, US$100= to
induce her to allow the truck safe passage into Zimbabwe without
declaring its contents. The appellant was arrested after the three
men in the truck revealed that they had bribed the appellant.
In
his Defence Outline, the appellant denied accepting a bribe from
anyone. He denied that he knew or met any of the three men in the
truck on the day in question. Further, he denied offering Rufaro
Mvududu (Rufaro) US$100= in order to allow the truck to pass through
into Zimbabwe without being searched.
The
State, in a bid to prove its case, called three witnesses, namely,
Rufaro Mvududu, Ronald Chasaya (Ronald), and Gamuchirai Chirikure
(Chirikure). Rufaro told the court a
quo
that while she was attending to the truck and its crew, the appellant
approached her and offered her US$100= which she did not see or take.
The money was for allowing the truck safe passage. She then informed
her supervisor about what the appellant had done.
The
second State witness was Ronald Chasaya who denied that he, or any of
the truck's occupants, had given the appellant any money. He said
he did not know the appellant at all. The State which was not amused
by the sudden u-turn in his evidence, impeached him, and, ultimately,
had him declared a hostile witness. Ronald was then extensively
cross-examined by the prosecutor but he stuck to his version.
Finally,
the State called Gamuchirai Chirikure, a police officer whose
evidence contradicted that of Rufaro Mvududu. Her evidence exonerated
the appellant in that she said the appellant was manning another gate
far away from where the truck in issue was parked and that in fact
she and not Rufaro dealt with the suspect truck. She was surprised
that the crew did not return to her with documents she had requested
but instead approached Rufaro. At that stage, she suspected that the
crew was up to no good. She also said, at that stage, the appellant
never came near the truck.
The
State closed its case without impeaching Gamuchirai Chirikure.
The
appellant gave evidence and insisted that he never spoke to any of
the three occupants of the truck.
He emphatically denied offering Rufaro Mvududu a bribe. He confirmed
that it was in fact Gamuchirai Chirikure who was manning the
“extrance gate” and that if what Rufaro alleged happened, had in
fact happened Chirikure would have seen him at or near the truck. She
did not.
The
magistrate, in her judgment, in which she curiously found Rufaro
Mvududu to be a credible witness, concluded thus:
“In
addition to that what (sic)
she is saying is backed up by the witness
statement of Ronald Chasaya.
He may have deviated from them (sic)
in court but his aggression or hostility towards the prosecution
shows that he was bent on changing his statement….,.
What
I find is that this
statement corroborates
what Rufaro said, that accused approached her on behalf of them…,.
He even
mentioned the amount of $200= which Nyarugwe was offered by his
brothers
with a balance to be paid after the transaction was complete. Those
are details which
add
to the possibility of the offence…,.
I
find the evidence
of Rufaro with the witness statements in contrast to accused's
assertions
head (sic)
to the conclusion that accused person did abuse his duty as a public
officer and offered a bribe.”…,.
Herein
lies the fundamental and monumental error committed by the
magistrate.
Ronald
Chasaya was a hostile witness who was so declared and cross-examined
by the prosecutor. The sole purpose of cross-examining a hostile
witness by a party calling him is to neutralize the adverse testimony
of such witness. In S
v Mazhambe & Ors
1997 (2) ZLR 597 (H) GILLESPIE J had this to say –
“The
purpose of proving a prior inconsistent statement is to neutralize
the effect of the unexpectedly adverse testimony.
The
statement does not itself become evidence. The contents of the
statement cannot be relied upon as evidence.
If
the witness who has already departed from the statement nevertheless,
on confrontation, admits the truth of the statement and adheres to
it, in the sense of repeating it in evidence then the court may act
on that oral evidence - although
not on the previous statement.
The weight of any such evidence will of course usually be
substantially affected by the equivocation of the witness.
Conversely, the fact that a witness has and his credibility impeached
by production of a previous inconsistent statement does not mean that
his evidence, adverse to the party calling him, must necessarily be
rejected. It remains evidence given in court and must be properly
examined and a judicial determination reached as to whether or not to
accept it. In particular, the explanation for the giving of the prior
statement may be such that the credibility of the evidence actually
given in court cannot be discounted.
Similarly,
where the court goes further and declares the witness hostile, the
adverse evidence is effectively neutralized as evidence led by the
party against itself. It is not, however, ipso
facto,
to be disregarded. The evidence given by that witness, both under
cross-examination by the party calling him and otherwise, may be
considered and accepted or rejected in whole or in part depending
upon the weight to be attached to it.”…,.
In
casu,
no reliance should have been placed on Ronald
Chasaya's
statement to the police. Further, his evidence in chief, in court,
could only be considered if he had incriminated the appellant in some
portions of his testimony. Put differently, if Ronald had associated
himself with portions that are not favourable to the appellant the
court could have relied on those portions. There are none such
portions.
In
R
v Twetison
1964 RLR 147, LEWIS J remarked;
“There
may well be cases where a previous inconsistent statement does not
operate against the acceptance of the evidence of that witness. For
example, a crown witness may give evidence on oath, in chief,
implicating the accused and he may then be cross-examined by the
accused to the effect that he had made a statement to the police
sometime previously exonerating the accused. He may then say:
'Yes,
I admit having said that but I was acting through fear at the time I
told that to the police. Now that I am in the court and I am under
oath, I am telling the truth and what I have told the courts is the
truth.'
In
such circumstances, in an appropriate case, it would be proper to
accept the evidence of such witness as truthful and convict on it
despite the previous inconsistent statement. In such a case, of
course, there is no question of the crown impeaching the credit of
its own witness and the evidence implicating the accused is evidence
on oath in court at the trial. But, as I pointed out, the reverse
cannot apply, if the witness, in his or her evidence on oath in
court, gives evidence unfavourable to the crown. The mere fact that
she has made a previous statement favourable to the crown
extra-judicially cannot be used to neutralize the unfavourable
evidence.”
In
this case, the court a
quo
could only rely on Rufaro
Mvududu's
evidence.
