Application
for Discharge at the Close of the State Case: 3rd
Accused George Nyamayaro
BHUNU
J:
The
third accused George Nyamayaro stands charged with murder together
with 4 others. He now applies for discharge at the close of the State
case in terms of section 198(3) of the Criminal Procedure and
Evidence Act [Chapter
9:07]
which provides that:
“(3)
If at the close of the case for the prosecution the court
considers that there is no evidence that the accused committed the
offence charged in the indictment, summons or charge, or any other
offence of which he might be convicted thereon, it shall return a
verdict of not guilty”.
The
section is couched in peremptory terms making it mandatory for the
Court to find the accused not guilty and acquitted if at the close of
the State case there is no evidence that the accused committed the
offence charged or any other competent verdict or offence arising
from that charge.
The
section has received wide interpretation through the cases such that
there is no longer any controversy regarding the meaning and import
of the section. The meaning and import of the section as determined
through the cases is that where at the close of the State case the
court finds that there is no evidence that the accused committed the
offence charged or any other offence arising from that charge the
court has no option but to acquit the accused.
The
circumstances under which an accused person may be entitled to
acquittal as a matter of right by operation of law at the close of
the State case are wide and varied but have been summarised as
follows:
1.
Where there is no evidence to prove an essential element of the
offence –
Attorney-General
v Bvuma & Another 1987 (2) ZLR 96 (S) at 102;
2.
Where there is no evidence on which a reasonable Court, acting
carefully, might properly convict – Attorney
General v Mzizi 1991 (2) ZLR 321; and
3.
Where the evidence adduced on behalf of the State is so manifestly
unreliable that no reasonable Court could safely act on it -
Attorney-General
v Tarwireyi 1997 (1) ZLR 575 (S)
at 576.
Having
summarised the applicable law, I now turn to consider the facts
giving rise to the charge.
The
facts surrounding the alleged murder are by and large common cause.
The undisputed facts are that on 4 August 2012 the five accused
persons were drinking beer in the company of the deceased Gidion
Jonasi and his nephew inside Chiwandamira Bottle Store at Chizanga
Business Centre, Murehwa.
As
they were drinking beer the first accused picked up a quarrel with
the deceased's nephew William Chirenje and threatened to assault
him. The deceased intervened to save his nephew whereupon the first
accused and his co-accused turned on the deceased and attacked him
instead. They are alleged to have struck him with booted feet and
fists. They dragged him out of the bottle store onto the veranda
where they continued to assault him. The deceased was then dragged
away to some secluded place from where the 5 accused returned after
about an hour.
The
group that had been attacking the deceased came back after about an
hour and left in a commuter omnibus driven by the fourth accused.
The
State called 3 eye witnesses to the assault that is alleged to have
resulted in the deceased's death. The first State witness Farai
Munanairi testified that he was in the bottle store when the fight
broke out. He saw first, second, fourth and fifth accused persons
attacking the accused in the manner alleged by the State. He however
denied ever seeing the third accused at the scene of crime. Although
in his statement to the police he implicated the third accused and
professed having seen him at the scene participating in the attack in
his viva
voce
evidence in court he made an about turn and alleged that he had been
influenced by the evidence of other witnesses.
The
second State witness Silas Gandiwa was an eye witness to the alleged
murder. It was his testimony that on the night in question he was at
Chiwandamira Bottle Store. He knows all the 5 accused persons as they
live in the same village. He grew up with the third accused in the
same village. He has known the third accused for about 40 years. This
is what he had to say in his own words:
“From
where I was I could see what was happening. That was clearly visible.
As second accused was grabbing the deceased others joined in, grabbed
him and dragged him to the veranda. I saw 5 people there and I
recognised them.
The
third accused was present but I did not witness the role that he
played.
I
saw 5 people pushing the deceased onto the veranda. There was James,
Daniel, Tichaona, Herbert and George
(i.e. 3rd
accused).
George was not pushing the deceased but he was present at the
veranda. He was accompanying his colleagues who were mobbing the
deceased. I do not know exactly what he was doing.…
I
did not witness 3rd
accused assaulting the deceased. I saw him when he was standing at
the veranda but I did not witness the specific role that he played in
assaulting the deceased.”
Under
cross-examination by Ms Nyakudanga
counsel for the third accused this is what the witness had to say:
“Q.
When you got to the bottle store did you see the third accused?
A.
Yes.
Q.
Where was he?
A.
In the bottle store.
Q.
Where?
A.
He was drinking beer and dancing.
Q.
When the fight started was he involved?
A.
I did not see him participate but he was amongst the group.
Q.
In your statement you include third accused in paragraphs 7, 8 and 9.
Why did you include him?
A.
Because he was amongst the group and he went out onto the veranda.
Q.
Paragraph 9 of your statement. (Read).
A.
They were surrounding him.
Q.
Was
it your evidence that third accused was part of the people who
dragged the deceased out of the bottle store and is one of them who
was holding and restraining him from escaping?
A.
Yes
he was amongst them.
Q.
Which part of the deceased was he holding?
A.
I did not see but he was amongst them.
Q.
Was
he amongst the mob or people holding the deceased?
A.
He
was amongst the people holding the deceased.
Q.
In your evidence in chief you said Accused 3 was amongst the mob but
now you say he was among the people who were holding the deceased?
A.
He was among the people holding the deceased.
Q.
I
put it to you that Accused 3 helped to restrain Tichaona from
assaulting the deceased by holding his hands.
A.
On
that point I do not know whether he was restraining or assisting
Tichaona to assault the deceased.”
Shepard
Gandiwa one of the fellow villagers who was in the bottle store when
the fight broke out confirmed that the third accused was in the
bottle store and was part of the mob that surrounded and dragged the
deceased onto the veranda when the fight broke out. He confirmed that
the third accused and his co-accused dragged the deceased from the
veranda into the darkness from which they returned some time later
and drove away in a kombi omnibus. His evidence to this effect reads:
“We
first heard James shouting that he was now going to deal with Gidion
since he was involving himself in the matter. We then saw James
assaulting Gidion. He assaulted him with a fist on the chest.
His
colleagues then started pushing Gidion onto the veranda. The
five of them were dragging him. They were pushing him.
Accused
2 was standing whilst surrounding the deceased. He was not doing
anything.
Accused
3 was just sanding whilst surrounding the deceased. He was not doing
anything apart from surrounding the deceased.”
Although
the first State witness Farai Munanairi did not see the third accused
at the scene the accused himself does not deny having been present at
the scene during the fracas. It is therefore common cause that he was
present at the scene actively participating in the fracas. He was not
just an ordinary bystander but an active participant in the brawl.
The
only point of departure is whether or not his involvement was that of
a peace maker or an accomplice.
There
are two independent eyewitnesses, Silas Gandiwa and Shepard Gandiwa
who gave evidence directly linking the accused to the commission of
the offence. They both gave evidence to the effect that the third
accused actively participated in the common design and purpose of his
co-accused to assault the deceased for restraining the first accused
from assaulting the deceased's nephew William Chirenje. It is that
assault which allegedly led to the deceased's death. Their combined
evidence is to the effect that he helped to push the deceased onto
the veranda and prevented him from escaping.
The
State has sought to rely on the doctrine of common purpose in linking
the applicant to the commission of the offence. It is trite that the
doctrine of common purpose renders a socius
criminis
that is to say, a person who associates himself with the criminal
conduct of another criminally liable for the crime of the principal
offender.
All
what it needs for the State to discharge its onus of proof is that
the accused associated himself with the criminal conduct of another
in furtherance of a common purpose to commit a crime. It is not
necessary for the State to prove the specific act the accomplice
performed in fulfilment of the common purpose and design to commit
the crime. The common purpose need not have been premeditated. It can
arise at the spur of the moment depending on the circumstances of
each case. See S
v
Safatsa 1988
(1) SA 868.
In
this case the State went beyond merely proving that the applicant was
a mere spectator or peacemaker when the crime was being committed by
adducing believable evidence to the effect that he aided and abated
the commission of the assault which caused the deceased's death.
For that reason this court comes to the unanimous decision that the
applicant has a case to answer. He is liable to explain his conduct
on the day in question as he interacted and associated with his
alleged accomplices during the events leading to the deceased's
death.
It
is accordingly ordered that the application for discharge at the
close of the State case be and is hereby dismissed.
TK
Hove and Partners, Applicant's
Legal Practitioners
The
Prosecutor General's office, Respondent's
Legal Practitioners
