HUNGWE J: After hearing both counsels in argument we allowed
this appeal and indicated that our reasons for that decision will follow. These
are the reasons. Appellant was charged with unlawful entry in aggravated
circumstances as defined in s 131(2) of the Criminal Law (Codification and
Reform) Act [Cap 9:23]. After a
contested trial, the appellant was found guilty as charged. He was thereupon
sentenced to thirty-six months imprisonment of which twelve months suspended
were on appropriate conditions. He appeals against both conviction and
sentence.
The substantive
grounds of appeal advanced by the appellant are the following; that the court
erred in convicting the appellant when there was no evidence led to prove
unlawful entry in aggravated circumstances; that the court erred in placing the
appellant on his defence after the State conceded that it had failed to
establish a prima facie case; that
the court had erred in convicting the appellant when the State had conceded
that it had not proved the case against the appellant beyond a reasonable
doubt.
At
the appeal hearing, the State maintained the same position that it had taken at
the trial. In our view, that position is quite justified in all the
circumstances of this case.
The State
outline gave the following averments as the basis upon which the appellant was
to be tried. Complainant is married to the appellant's sister. During 2002
complainant left for South Africa and left the appellant in charge of his shop
at 64C Charter Road, Harare, which at the time, he leased from the appellant.
The State
outline continued:
"Some
goods continued missing from the shop but the complainant could not tell how
the goods were missing.
At a
later date he got an anonymous letter informing that someone had been stealing
from his shop and suggested that the complainant changes his keys. The
complainant changed his keys and all of a sudden no shortfalls were ever
noticed.
The
accused took advantage the time he was left in charge of the shop and obtained
duplicate keys which he then used to gain entry into the shop and stole various
items. Total value stolen is $100 000, 00 and nothing has been recovered."
The
evidence led during trial did not prove
(a)
an unlawful entry;
(b)
the quantity or the description of goods stolen, or
(c)
the value of such goods, or
(d)
when they were allegedly stolen or even
(e)
such general deficiency as alleged in the outline.
More importantly,
however, we noted that whilst the charge related to unlawful entry, the
judgement dealt at length with theft. Yet such theft, if any, only served to
aggravate the alleged unlawful entry which the State charged the appellant
with. Regarding the allegation of unlawful entry the State was hard put to
prove this element because the premises in question belonged to appellant. It
is not clear from the evidence which part of the premises complainant leased
from the appellant.
The allegation
in the State outline that the appellant was at some point left in charge of the
shop was denied by the complainant. It was not in dispute; however, that
complainant's wife also sells shoes from the same shop which complainant leased
from the appellant. In the absence of the exact period during which his entry
into the shop premises would have been unlawful it was difficult, if not
impossible, to prove unlawful entry. Further, the risk of false incrimination
in this case was not safely excluded. We make this observation on the following
basis. Appellant and complainant were engaged in fierce civil litigation
wherein the appellant sought to evict the complainant from the same premises in
issue in the present case. He succeeded in the magistrate's court. Complainant,
soon after receiving the notice of eviction, made a police report concerning
the present allegations regarding issues dating back over four years
previously. When asked why he took such a long time to report theft to the
police, his explanation was that he attempted to resolve the matter at the
family level. This may be so, but the inference that the report was actuated
more by malice after he lost the battle for eviction, than the alleged theft,
is highly irresistible. The court a quo should have approached the
evidence tendered by the complainant with more caution than it did.
As for the
ground of appeal that the court a quo
erred in placing the appellant on his defence after the State had conceded that
it had failed to establish a prima facie
case, the submission is not wholly correct. It is doubtful, on the case law,
whether such an error can be a sound ground of appeal standing alone. The authorities
do not agree that this is so.
Section 198(3)
of the Criminal Procedure and Evidence Act provides that 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 or any other offence of which he
(or she) might be convicted thereon, it shall return a verdict of not
guilty.
There
is sound basis for ordering the discharge of the accused at the close of the
case for the prosecution, where:
(I)
there is no evidence to prove an
essential element of the offence: see Attorney-General
v Bvuma & Anor 1987 (2) ZLR 96 (S) at 102F-G;
(ii) There is no evidence on which a
reasonable court, acting carefully, might properly convict: see Attorney-General v Mzizi 1991 (2) ZLR
321 (S) at 323B;
(iii) The evidence adduced on behalf of the
State is so manifestly unreliable that no reasonable court could safely act on
it: see Attorney-General v Tarwirei
1997 (1) ZLR 575 (S) at 576G.
It
is significant that s 198(3), unlike its precursor s 188(3) of [Cap 59], uses the word ``shall'' and not
``may'' - ``it shall return a verdict of not guilty''. The amendment was
probably occasioned by the dictum in Attorney-General
v Bvuma & Anor supra at 102F
that it is:
``not
a judicious exercise of the court's discretion to put an accused on his defence
in order to bolster the State case in a case which, standing alone, cannot be
proved.''
Hence, so far as
the law in Zimbabwe is concerned, there is no longer any controversy as to
whether a court may properly refrain from exercising its discretion in favour
of the accused, if at the close of the case for the prosecution it has reason
to suppose that the inadequate evidence adduced by the State might be
supplemented by defence evidence.
In S v Kachipare 1998 (2) ZLR 271 (SC) the
court held, however, that once an accused person is put on his defence, albeit
wrongly, and is ultimately convicted, the refusal to discharge the accused is
not in itself a sustainable ground for appeal against the ultimate conviction.
At the stage the appeal is heard, the court cannot close its eyes to the
evidence lead on behalf of the accused or a co-accused which, taken in
conjunction with the State evidence, proves the accused's guilt conclusively.
The question which the appeal court must consider is whether, on the evidence and the findings of credibility
(if any), unaffected by the irregularity, there is proof of guilt beyond a
reasonable doubt. If the court does so consider - and the onus is on the State
to satisfy it - there is no resultant miscarriage of justice and the
irregularity will be ignored.
In my view,
where the appeal court finds evidence supporting the conviction in the defence
case, the fact that standing on its own the State case had not established
evidence upon which a reasonable court could convict does not entitle the
appeal court to interfere with conviction. Therefore, an appellant cannot
succeed in persuading the court that he was entitled to an acquittal at the
close of the case for the prosecution simply because, at that stage, there was
insufficient evidence upon which he could have been convicted. If there was
admissible evidence indicating guilt on the part of an appellant on the record,
an appeal court cannot rely on the erroneous decision of the court a quo placing the accused on his
defence, unless there is some other irregularity which renders the conviction
insupportable or not in the interests of justice. In the present case, the dearth
of evidence was not cured either by the appellant exercising his right to
remain silent or the evidence showing that he gave his co-accused the tyres
which led to his co-accused's arrest.
The duty to
prove beyond a reasonable doubt that the appellant committed the offence
charged remained squarely on the State. As I said at the outset of this
judgment, there were too many gaps to put the matter beyond a reasonable doubt.
Complainant stated that he was the sole importer of certain bicycle tyres. The
court a quo appears to have believed
him without any evidence to prove that indeed he was. It escapes me how such a
claim could go unchallenged. There was no proof of any sort as to what exactly
was allegedly stolen besides a blanket claim that an assortment of merchandise
was stolen. What led the court to hold that the appellant who allegedly gave
his co-accused bicycle tyres to sell, also stole double sockets, single
sockets, spiral wires, hammers, axes, saws, bicycles? There is just no evidence
to suggest he did.
The concession by the prosecution
that there was no prima facie case
against the appellant, in my view, was well made.
It was for these
reasons that after hearing counsel's submissions we allowed the appeal. In the
result therefore the conviction in the court a quo is set aside and the following is substituted:
"The
accused is found not guilty and is acquitted."
MAVANGIRA
J: agrees
Venturas
and Samukange, legal practitioners for the appellant
Attorney-General's Office, legal practitioners for the respondent
