On
the 31st
July 2014, in the late hours of the night, the appellant was driving
a Nissan Sunny saloon vehicle with at least four occupants. He drove
the vehicle over rocky terrain, on a dirt road. The vehicle was laden
with 194kgs
of fresh beef in the boot.
At
Cyrene Farm, the appellant was intercepted by farm workers who lay an
ambush as they suspected he was ferrying stolen meat. After stopping
the accused, the farm workers introduced themselves as farm workers
who were on patrol. The appellant promptly produced his police
identity card indicating that he was an Assistant Inspector in the
Zimbabwe Republic Police and that he was coming from his plot. The
appellant was requested to open his boot to confirm what he was
carrying. The appellant pretended to be parking his car off the road
but suddenly sped away.
A
high speed chase resembling a Hollywood- style escape ensued.
The
Cyrene Farm workers, who had quickly jumped into their pick-up truck,
chased the appellant's vehicle for some distance. The appellant
drove towards the Bulawayo-Plumtree road and on reaching the main
road, he took a right turn. The pick-up truck continued to give chase
and the two vehicles side-swiped. The appellant's vehicle suffered
a puncture on the rear left wheel forcing him to drive off the road
to West Acre shopping area. The appellant stopped his vehicle and his
associates jumped out of the vehicle disappearing into the darkness.
The appellant attempted to off-load the stolen loot from the boot of
his car but he gave up and surrendered when he realised that he had
been cornered. The appellant claimed that he was not aware that he
was carrying stolen meat. He stated that he believed that he was
carrying groceries which he had been hired to collect from a bush at
Cyrene Farm.
The
appellant, who was an Assistant Inspector based at ZRP Mzilikazi in
Bulawayo, appeared before a provincial magistrate sitting at Plumtree
facing one count of contravening section 114(2)(b) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23], that is, stock
theft. He pleaded not guilty, and, after a protracted trial, he was
convicted and sentenced to the minimum mandatory sentence of 9 years
imprisonment.
The
appellant was not satisfied with the conviction and sentence and
noted an appeal with this court. The appellant's appeal is premised
on the following grounds of appeal as set out in the Notice of
Appeal;
1.
The court a
quo
erred in convicting the appellant when he was a hired driver and had
no knowledge and could not foresee that he had been hired to
transport stolen beef.
2.
The court a
quo
erred in convicting the appellant when he had been exonerated by
evidence given by the appellant's co-accused who was acquitted on
the same charge.
3.
The court a
quo
erred in convicting the appellant when it was proven that he had no
knowledge or had not realized that he could have been in possession
of stolen beef.
4.
The court a
quo
erred by convicting the appellant on the basis of unreliable evidence
led from State witnesses.
5.
The decision reached by the trial magistrate was grossly unreasonable
to such an extent that no reasonable court could have convicted on
the facts laid before the court….,.
This
court notes that the trial court delivered a well-reasoned and
articulated judgment. Most of the issues raised during the trial are,
to a large extent, common cause. There are as follows:
(a)
The appellant drove off from the Plumtree-Bulawayo road into the bush
well into the night.
(b)
He found men with bags waiting for him at two different locations.
(c)
The men loaded meat into the accused's motor vehicle.
(d)
The accused claims that he did not bother to see what two men were
loading into his car - in a bushy area at night.
(e)
He drove the vehicle towards the direction of Bulawayo with two
strangers and one Sheila with goods that weighed 194kgs.
(f)
When the appellant was confronted by farm workers who wanted to
search the boot of his car he produced his police identity document.
(g)
The appellant sped away and only stopped when one of his tyres was
punctured in a high-speed chase. The occupants of his vehicle fled
and were never apprehended.
On
the basis of the established facts, the trial court came to the
conclusion that the State had proved its case beyond reasonable
doubt.
This
case is based on circumstantial evidence. There is no direct evidence
linking the appellant to the commission of the offence.
The
law on circumstantial evidence is well established in our
jurisdiction. The law on this subject has its basis on two cardinal
rules of logic as laid down in the case of R
v Blom
1939 AD 188 where the learned judge observed that the following rules
must be observed:
(a)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(b)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be doubt whether
the inference sought to be drawn is correct.
In
the instant case, the following facts are clearly established by the
evidence led by the State;
(a)
That the beast belonging to Matopo Research Institute was slaughtered
on the night in question in a bushy area.
(b)
The appellant's motor vehicle was seen headed in the direction of
the farm that night.
(c)
That, upon being stopped, the appellant introduced himself by
producing a police identification card and stated his rank in the
police force as an Assistant Inspector.
(d)
The farm workers, who had erected a road block, indicated to the
appellant their intention to search his motor vehicle.
(e)
The appellant drove off without subjecting himself to the search.
(f)
The farm workers gave chase, and, in the process, the two vehicles
side-swiped. The appellant did not stop.
(g)
The appellant ran out of luck when his rear left tyre was punctured.
He only stopped at a dark area at West Acre. He attempted to removed
the bags of meat from the boot before he was apprehended.
It
is my view that the proved facts reflect an unusual behaviour on the
part of the appellant who was a senior police officer. The purpose of
the appellant's journey to Cyrene Farm, in the dead of the night,
was certainly not an innocent adventure. His determination and
commitment to the entire trip only leads one to the conclusion that
he was aware that he was on a mission to collect stolen meat. His
explanation that he was hired to collect groceries from a bush, at
night, defies logic and common sense.
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).
I
entertain no doubt that the trial court did not err when it came to
the conclusion that from the evidence adduced by the State the only
reasonable inference that may be drawn is that the appellant was
aware that he was carrying stolen meat. When he was intercepted he
fled the scene because he was well aware that he had been caught with
stolen meat. His attempt to produce his police identification card
was meant to evade the road block.
The
trial court cannot be faulted for the factual findings that it made.
The
court was alive to the fact it was dealing with a case in which the
guilt of the accused was sought to be established by circumstantial
evidence. It was satisfied, upon application of the relevant test,
that the only fact which can be established by reasonable inference
from all the circumstances of the case was that the appellant was
well aware that he was ferrying stolen meat.
The
court said:
“It
is clear that the accused did not behave like an innocent hired
driver. He protected the contents of his car boot. He did not want
them to be seen or discovered by the eye witnesses. He only turned
into West Acre because he had a tyre burst, not that he wanted light,
because even when he arrived there, he did not park where there was
light. It is apparent that the accused lied that he had been hired.
He lied too that he did not produce his police identity.
He
also lied about the source of the groceries. It is an afterthought
that he wanted to go the West Acre and get illumination as proved by
the evidence as discussed above. The accused was fleeing. A hired
driver has nothing to hide. The accused had already been paid $20=
according to him. He had nothing to lose by allowing the witnesses to
search the boot whose contents he did not know and in respect of
which the owners did not protest. He could not allow that because the
witnesses would have discovered the offence, hence his refusal and
flight…,.”
The
decision of the court a quo is supported by evidence.
There
is therefore no basis on which this court can interfere with the
conviction. The position of our law is that the court will not
lightly interfere with the factual findings of a lower court. This is
so because the trial court has the benefit of assessing the demeanour
of witnesses and of commenting on their credibility.
In
the result, there is no merit whatsoever in the appeal against
conviction.
