The
appellant appeared before the Magistrates Court sitting at Gweru on
24 October 2014 jointly charged with a security guard employed by
Zimpost Gweru, which also employed him as Postal Manager, of theft in
contravention of section 113(i)(a) and (b) of the Criminal Law Code
[Chapter 9:23].
Following
a full trial in which the State led evidence from two witnesses, also
security employees of Zimpost, the two of them were convicted…,.
Aggrieved
by that outcome the appellant has appealed to this court against
conviction. His main gripe with the conviction is that the court a
quo
relied entirely on the evidence of his co-accused who was, for all
intents and purposes, an accomplice. In doing so, the court a
quo
did not apply the cautionary rule to warn itself against the inherent
danger of false incrimination.
The
appellant's troubles started when Zimpost tried to auction what
must have been a non-runner Mazda B1600 motor vehicle registration
number ABP 5985 on 2 December 2012 only to discover that it had a
gear box and prop shaft missing. The theft was then reported to
Clever Nyavaranda, then a security officer at Zimpost who was based
in Harare. Breathing fire and brimstone, Clever Nyavaranda descended
on Gweru Zimpost to investigate the matter. He says he gathered all
the guards and read the riot act to them. He says he informed them
that one of them was involved in the missing parts of the motor
vehicle.
It
was then that one of the guards, Tapera Mapfumo, disclosed that while
he knew nothing about the gear-box, he was aware that a prop shaft
had been removed by the appellant in his presence. Probed further,
Tapera Mapfumo led them to a site about 45m from where the vehicle
was parked where he retrieved the prop-shaft from a drain where it
was hidden under some leaves. The appellant was subsequently arrested
and jointly charged with Tapera Mapfumo aforesaid.
At
the trial, none of the two State witnesses implicated the appellant.
All they could say was that they acted on information obtained from
Tapera Mapfumo. Only the latter implicated the appellant when he
presented his defence. He stated that the appellant had advised him
that he desired to remove a prop shaft from the Mazda motor vehicle
to fit it on his own vehicle in Kwekwe. He went on to say that on
another day, while he was on duty guarding the complainant's
property at night, the appellant had come and removed the prop shaft
from the vehicle before hiding it in the drain from where it was
later recovered following indications made by Tapera Mapfumo.
Although he acknowledged that his duties were to “safeguard company
property” Tapera Mapfumo did not stop the appellant neither did he
arrest him.
It
is only on that basis that the appellant was convicted.
In
its judgment, the court a
quo
proceeded headlong to accept the evidence of Accused One hook, line
and sinker without any regard whatsoever to the fact that he was an
accomplice whose evidence was very suspect. This is what the court
said on that issue in its judgment…,.
“In
analyzing the evidence adduced, the court realizes that the only
evidence linking the 2nd
accused (the appellant) to the offence is the first accused's
testimony pertaining to the prop shaft. The 1st
accused's testimony was further corroborated by the 2nd
State witness who confirmed to the court that he was informed by the
1st
accused that 2nd
accused approached him wanting to be helped to remove the propshaft
from the said vehicle. Supposing the 1st
accused is making false allegations against the 2nd
accused it has to be proved to the court that the 1st
accused had such a motive. From the evidence adduced, it appears
there is no bad blood between the two accused persons and neither is
there bad blood between the 2nd
State witness and 2nd
accused.”
The
naivity exhibited in the foregoing passage of the judgment of the
court a
quo
is disarming.
In
the first place, there was no corroboration at all. It occurs to us
that what was meant to be corroborated was Tapera Mapfumo's story
that the appellant had approached him while he was on duty and
requested his assistance in removing the prop-shaft and that he had
subsequently removed it and hidden it. The fact that he had repeated
the same story to his two superiors, Mhlanga and Nyavaranda, before
saying it in court cannot, by any stretch, be taken as corroboration.
It is just one story said to the investigators and repeated in court.
According
to ROWLAND REID.., corroboration means evidence, other than that of
the complainant, which is consistent with the complainant's version
of facts and which tends to show the guilt of the accused. To be of
evidential weight, the facts corroborated must be material ones. It
is a salutary principle of our law of evidence that a witness cannot
corroborate himself.
Yet
this is exactly what Tapera Mapfumo did in the mind of the court a
quo.
He told a story implicating the appellant in court which story he had
told both Mhlanga and Nyaravanda. Having done that, the court
accepted, as corroboration, the same story when it was told by those
two merely repeating what Tapera Mapfumo had allegedly told them
outside court. It cannot be corroboration.
In
the second place, there is nothing to suggest that the court was
alive to the fact that it was dealing with the evidence of an
accomplice which is inherently suspect and must therefore be treated
with caution. It did not warn itself at all of the dangers inherent
in relying on such evidence. An accomplice's evidence is treated
with caution because he is himself guilty of criminal conduct and is
therefore badly conflicted. He may therefore lie to the court in the
hope of ingratiating himself in the eyes of the court or may do so in
the hope of exculpating himself, shifting the blame for his own
conduct onto someone else.
When
dealing with accomplice evidence, the court is therefore required to
apply the cautionary rule and warn itself against the danger of false
incrimination which exists with accomplice evidence. It must be
satisfied, beyond a reasonable doubt, that the danger of false
incrimination has been eliminated. See S
v Mubaiwa
1980 ZLR 477.
Whichever
way, the conviction was improper as the court relied on the
uncorroborated evidence of an accomplice, the co-accused, which was a
misdirection. It cannot stand.
In
the result, it is ordered, that:
1.
The appeal against conviction is hereby upheld.
2.
The conviction of the appellant is set aside and substituted with the
verdict that the appellant is hereby found not guilty and acquitted.
