MAKARAU
JA:
This
is an appeal against the judgment of the High Court sitting at
Harare, handed down on 12 December 2016.
In
the judgment, the court a quo found the first three appellants guilty
of murder and the fourth appellant guilty as an accessory after the
fact, of public violence.
The
first three appellants were sentenced each to 20 years imprisonment.
The
fourth appellant was sentenced to a fine of $500-00 or in default,
three months' imprisonment with a further three years imprisonment
suspended on conditions.
The
appeal is against the convictions and the sentences.
Background
Facts
On
29 May 2011, a political party, “the MDC-T”, held a political
gathering at a shopping center in one of the suburbs in Harare. The
purpose of the gathering was to celebrate the party's T-shirt
visibility programme.
A
group of police officers led by the deceased, was dispatched to
disperse the gathering which was deemed illegal.
When
ordered by the police officers to disperse, the group did not resist
but pleaded with the police to first complete their food preparations
which included a barbecue, before they could disperse. The police
agreed to this arrangement and left.
Reports
later reached the police that the group had thereafter relocated to
another shopping centre in the same suburb. The police, once again
led by the deceased, reacted and followed to the new location.
When
the officers tried to disperse the gathering at the new location,
they were met with stiff resistance. In the melee that ensued, the
deceased was stoned by an unidentified assailant. He fell down onto
the tarmac. He died as a result of a severe injury to his head which
depressed his skull and caused damage to his brain.
On
12 March 2012, the appellants and 25 others were arraigned before the
court a quo facing one count of murder as defined in s47 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] and
alternatively or concurrently, with public violence as defined in
s36.
After
a protracted trial lasting over four years, the appellants were duly
convicted and sentenced as detailed above.
The
court a quo found that the first three appellants had, on 29 May
2011, unlawfully and with actual intent to kill, murdered the
deceased by hitting him on the head with a brick, causing injuries
from which he later died.
It
found the fourth appellant guilty as an accessory after the fact to
the crime of public violence, which it held to be subsumed in the
crime of murder.
The
fourth appellant had ferried the first two appellants from the scene
of the crime in the vehicle he was driving.
In
finding the first three appellants guilty of murder, the court was
clear in its mind that the guilt of the accused persons hinged on
whether or not the appellants participated in the commission of the
crime either directly or by association. In particular, it was its
view that the case against the three appellants hinged on the
applicability of the common law doctrine of common purpose, which it
dealt with extensively, before convicting the appellants as detailed
above.
The
Appeal
As
indicated above, the appellants were aggrieved by the convictions and
sentences. In noting this appeal, they raised six grounds. I cite
them here in full.
“1.
The court a quo erred and seriously misdirected itself when it failed
to properly apply the law and discharge the appellants as it was
obliged to at the close of the State's case in terms of s198(2) of
the Criminal Procedure and Evidence Code, when no evidence justifying
their placement on their defence had been led and in doing so denied
them a fair trial with the result that the conviction and sentence
must be vacated.
2.
The court a quo further erred and misdirected itself in finding the
appellants guilty on the basis of the doctrine of common purpose when
in law the doctrine is no longer part of our law, the criminal law of
Zimbabwe, having been codified in the Criminal Law Codification and
Reform Code, which specifically outlaws Roman-Dutch Criminal Law.
3.
The court a quo further erred and misdirected itself when it
convicted the fourth appellant as an accessory after the fact to the
crime of public violence when there is no actual perpetrator
convicted of public violence.
4.
The court a quo further erred and misdirected itself when it failed
to find as an extenuating circumstance the fact that none of the
appellants were shown to have directly participated in the melee that
resulted in the deceased's death, thus reducing their moral
blameworthiness.
5.
Taking into account the full circumstances of the case, the court a
quo's sentence of 20 years imprisonment induces a sense of shock in
its excessiveness.
6.
The court a quo erred and misdirected itself when it suspended a
portion of the sentence on wide incompetent terms unrelated to the
crime under which the appellant was convicted.”
The
Issues
The
issues that fall for determination in this appeal are interwoven.
The
first ground of appeal argues that the court a quo erred in failing
to acquit the appellants at the close of the State case when there
was no evidence justifying the continuation of the trial beyond that
point.
This
seemingly raises the issue whether the court a quo erred as alleged.
I use the word seemingly deliberately. This is so because of the
settled position at law that failure to discharge an accused person
at the close of the State case can only sustain an appeal where it is
found that at the close of the State case there was no evidence
justifying a conviction and the defence case furnished no such proof.
The
position, first debated in the controversial case of Kachipare v S
1998 (2) ZLR 271 (S), has gained traction and is accepted as the
correct statement of our law. (See S v Hunzvi 2000 (1) ZLR 540 (SC).
It
has occurred to me that the rule in Kachipare v S (supra), can be
understood in two distinct senses.
(i)
In the one, it renders incompetent and unsustainable as a ground of
appeal, one that simply alleges a failure by the lower court to
acquit the appellant at the close of the State case without further
alleging that there was no defence evidence proving guilt.
In
this sense it is an instruction to appellants not to seek to rely on
the bare allegation that at the close of the State case there was
insufficient evidence. The ground of appeal must of necessity attack
the totality of the evidence led in the trial.
(ii)
In the other, it directs the appellate court determining the question
raised by such a ground to also consider the evidence led in the
defence case before upholding or dismissing such a ground.
It
is however not necessary that I debate to finality which of the two
senses the court in Kachipare intended. For the purposes of
determining this appeal, I will assume it is the latter.
In
view of the fact that the court a quo relied on the common law
doctrine of common purpose to place the appellants and others on
their respective defences and in convicting the appellants at the end
of the trial, it is only logical that I deal firstly with whether or
not the common law doctrine of common purpose was, at the material
time, part of the Zimbabwean criminal law.
This
is the issue that arises from the second ground of appeal.
Depending
on my findings on the above issue, I will proceed to determine
whether there was sufficient evidence against the appellants to
justify the continuation of their respective trials beyond the close
of the State case on the basis of the applicable law. This will
address the issue that arises from the first ground of appeal.
The
issue relating to the propriety of the sentences imposed on the
appellants shall thereafter be determined and only to the extent that
this becomes necessary.
I
have thus set up three issues which I now deal with seriatim. These
are:
1.
Whether at the material time, the common law principle of common
purpose was part of the Zimbabwean criminal law;
2.
Whether at the close of the State case there was evidence justifying
the continuation of the trial; and
3.
Whether the sentences imposed on the appellants are severe and induce
a sense of shock.
The
Law
Was
the common law doctrine of common purpose part of the Zimbabwean
criminal law at the material time?
The
criminal law of Zimbabwe was codified by the Criminal Law
(Codification and Reform) Act [Chapter 9:23], “the Code”. The
Code was promulgated in 2005 and came into force on 1 July 2006.
The
purpose of the codification was partly to bring together under one
statute the main aspects of the criminal law that were hitherto
fragmented and partly, to reform and improve on the criminal law.
This explains the lengthy and double-barreled title of the Code.1
The
Code therefore not only systematically arranged the existing material
on criminal law conveniently under one legislation but also amended
and modified the law.
Whilst
the codification of the law brought with it convenience, the reform
had wide-reaching ramifications. These ranged from the cosmetic, such
as changing the nomenclature for some common law crimes, to the
radical and fundamental. It changed the source of criminal law and
supplanted itself and other statutes as the predominant source of the
criminal law in the jurisdiction.
It
appears to me that it was the clear intention of the law makers to
make the Code and other statutes the sole sources of the criminal law
in the jurisdiction after the fashion of the Napoleonic and other
civil law penal codes. This it sought to achieve through the
cumulative effect of the provisions of ss3 and 9.
Section
3 of the Code provides that:
“3.
Roman-Dutch criminal law no longer to apply
(1)
The non-statutory Roman-Dutch criminal law in force in the Colony of
the Cape of Good Hope on 10 June 1891, as subsequently modified in
Zimbabwe, shall no longer apply within Zimbabwe to the extent that
this Code expressly or impliedly enacts, re-enacts, amends, modifies
or repeals that law.
(2)
Subsection (1) shall not prevent a court, when interpreting any
provisions of this Code, from obtaining guidance from judicial
decisions and legal writings on relevant aspects of -
(a)
the criminal law referred to in subs (1); or
(b)
the criminal law that is or was in force in any country other than
Zimbabwe.”
It
further appears to me that the language used in the section was
deliberately wide to oust as much of the common law as is possible
and was intended to make the Code and other statutes the predominant
sources of the criminal law in this jurisdiction with the common law
providing a fallback position to avoid any possible gaps in the law.
Thus,
to widen the scope of its application and contrary to the general
principle of interpretation of statutes that holds that statutes can
only oust the application of the common law expressly and in clear
language2
, s 3 of the Code permits and legitimizes the ousting of common
criminal law by implication. 3
See S v Matare 1993 (2) ZLR 88 (SC).
Section
9 which anchors the legitimacy of any criminal conviction and penalty
in this jurisdiction provides that:
“9
Liability for criminal conduct
A
person shall not be guilty of or liable to be punished for a crime
unless -
(a)
the crime is defined by this Code or any other enactment; and
(b)
the person committed the crime or was a party to its commission as
provided in this Code or in the enactment concerned; and
(c)
his or her liability is based upon voluntary conduct; and
(d)
subject to subs (5) of section seventeen, the person engaged in the
conduct constituting the crime with any of the blameworthy states of
mind referred to in sections thirteen to sixteen of this Code or any
other enactment may require; and
(e)
his or her liability is based upon unlawful conduct, that is upon
conduct for which there is no lawful excuse affording that person a
complete defence to the criminal charge, whether in terms of Chapter
XIV or otherwise.”
I
digress briefly to note that the position I have detailed above held
possibly only up to 2013 when the new Constitution was adopted. I say
so advisedly because s89 of the Constitution, which was enacted after
the Code provides that:
“89
Law to be administered
Subject
to the provisions of any law for the time being in force in Zimbabwe
relating to the application of African customary law, the law to be
administered by the Supreme Court, the High Court and by any courts
in Zimbabwe subordinate to the High Court shall be the law in force
in the Cape of Good Hope on 10 June 1891, as modified by subsequent
legislation having in Zimbabwe the force of law.”
There
is therefore some scope to argue that through the provisions of s89
above, the Constitution has reinstalled for all purposes and for all
laws, including the criminal law, the Roman-Dutch common law as a
source of law. Put differently, there is scope to argue that the
provisions of s89 of the Constitution have clouded and rendered
ambiguous the language of s3 of the Code which before the enactment
of the Constitution was clear and required no interpretation.
I
remain of the above view notwithstanding that the repealed
constitution had a similarly worded s89 on the law to be administered
by the courts.
The
law in force in the Cape of Good Hope on 10 June 1891 or Roman-Dutch
common law as it is appropriately called, was the applicable law
together with subsequent legislation modifying the common law.
The
Code, having effect on a date subsequent to the adoption of the
repealed constitution, was permissible “subsequent legislation”
modifying the common law.
In
summary therefore, the law of common purpose has seen major changes
in 2006 when the Code took effect, possibly in 2013 when the
Constitution was adopted and in 2016 when s196 of the Code was
amended.
Quite
apart from the fact that we did not have the benefit of researched
argument from counsel on it, this issue is not relevant for the
determination of this appeal.
This
is so because the material date in this appeal is 29 May 2011, which
fell well before the adoption of the Constitution.
I
merely flag the possible impact of s89 of the Constitution on s3 of
the Code for law development purposes.
The
issue illustrates how complex the determination of the applicable
criminal law in any case after the codification of the criminal law
may become and how it would appear that the codification and reform
of the criminal law has created an unintended minefield for the
unwary.
Returning
to the issue under discussion, it is common cause that the material
date in this appeal is 29 May 2011. This was the date of the
commission of the crime.
Section
3 of the code applied.
Its
language is clear and admits of no doubt. It therefore requires no
interpretation.
To
establish whether or not the common law principle of common purpose
was applicable at the material time, I must perforce look to the text
of the Code to establish whether or not the Code had at that time
expressly or impliedly enacted, re-enacted, amended, modified or
repealed the principle under challenge. If it had dealt with the
principle in any manner as detailed in s3, then, the common law
principle was no longer applicable. The reverse would also hold.
What
then is the common law doctrine of common purpose?
It
is a principle that deems the participation of two or more persons in
the commission of a crime where the two or more persons associate
with a common intent to commit the crime and one of them does commit
the crime. It thus provides for co-perpetrators of crime with a
common intent. In essence, the doctrine provides that if two or more
people act together in pursuance of a common intent, every act done
by one of them in furtherance of that common intent is deemed at law
to be the act of them all: Macklin, Murphy and others (1838) 168 ER
1136; and Chauke v S 2000 (2) ZLR 494 (S).
The
common law doctrine of common purpose has a drag-net effect. This is
self–evident. As the head-note to S v Safatsa 1998 (1) SA 869 AD
has it:
“The
principle applicable where there is shown to have been a common
purpose is that the act of one participant in causing the death of
the deceased is imputed, as a matter of law, to the other
participants (provided, of course, that the necessary mens rea is
present).
A
causal connection between the acts of every party to the common
purpose and the death of the deceased need not be proved to sustain a
conviction of murder in respect of each of the participants.”
When
the Code was enacted, it provided in s196 for the liability of
co-perpetrators who associate with each other with the intention that
each or any of them shall commit any crime. Broadly, this provision
re-enacted the essence of the common law doctrine of common purpose.
In
terms of s3 of the Code as detailed above, the direct application of
the common law doctrine of common purpose in establishing the
criminal liability of accused persons at the material time was
therefore ousted by the enactment of s196 of the Code.
The
criminal liability and punishment for two or more people who
allegedly acted with a common intent at the time could only be
imposed in accordance with the provisions of the Code.
On
the basis of the above, it is my specific finding that at the time
the appellants were charged with the crimes of murder and/or public
violence, the common law doctrine of common purpose was not
applicable in this jurisdiction. The then s196 of the Code was the
applicable law.
Before
I proceed to analyse the decision a quo I wish to comment on the
submission by counsel for the respondent, that the common law
doctrine of common purpose is still applicable in our courts as this
Court has applied it in two instances after the promulgation of the
Code. Reference in this regard was made to the decisions of this
Court in (1) Vusimuzi Moyo (2) Khulekani Nkomo v S SC37/2013 and
Ncube v S SC58/2014.
As
indicated above, the law appears to be in flux in the wake of the
adoption of the Constitution. The critical factor in my view is the
date when the alleged crimes were committed.
More
importantly though, I am unable to find a discussion of s3 in either
of the two cases. I do not therefore hold the two cases as authority
for the proposition that the common law doctrine of common purpose
was the applicable law at the time the crimes alleged against the
appellants herein were committed.
Analysis
In
placing the appellants and others on their respective defences at the
close of the State case, the court a quo had this to say:
“As
I have stated elsewhere in this judgment, the State case is based on
the common law doctrine of common purpose or conspiracy to commit a
crime which has now been codified under s188 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] which provides that:
“(1)
any person who enters into an agreement with one or more other
persons for the commission of a crime in terms of this code or any
other enactment:-
(a)
intending by that agreement to bring about the commission of the
crime; or
(b)
realizing that there is real risk or possibility that the agreement
may bring about the commission of a crime……..”
The
court a quo proceeded to refer to case law and legal texts on the
common law doctrine of common purpose before stating as the basis of
its decision that:
“…..
anyone who is shown to have associated himself or herself at the
material time with the group that eventually killed the deceased in
the process of resisting police orders to disperse has a case to
answer.”
In
convicting the appellants, the court a quo applied the same law that
it had applied in dismissing the application to discharge the
appellants at the close of the State case.
It
applied the common law doctrine of common purpose.
The
provisions of sections 3 and 9 of the Code were not drawn to its
attention and were therefore never considered by it.
The
error that the court a quo fell into is self-evident.
It
applied the wrong law in establishing whether or not the appellants
had participated or associated themselves with the commission of the
crime in such a manner as to attract criminal liability. It applied
the common law doctrine of common purpose instead of finding the
liability of the appellants on the basis of the provisions of s196 of
the Code as it then was.
Clearly
but again in error, the court a quo was of the view that at the
material time, the Code and the common law were of equal and
interchangeable application.
They
were not.
I
say so because having found that the common law principle of common
purpose had been codified in s188, which provides for conspiracy,
erroneous on its own, the court a quo was of the view that it could
then revert to the common law principle of common purpose and apply
it directly to the facts of the matter that was before it.
It
could not.
The
intention of the law makers in enacting the Code appears to me to
have been quite clear. Once a court finds that the common law has
been enacted, re-enacted, modified or repealed in the Code, the Code
takes over and becomes the sole source of the law and the provisions
of the Code become exclusively applicable, with precedent only acting
as a guide in interpreting the provisions of the Code.
Thus,
even assuming for a moment that conspiracy and the doctrine of common
purpose are the same, as noted above, a finding by the court a quo
that the doctrine of common purpose had been provided for under the
Code as “conspiracy” would have debarred it from further
proceeding to apply the common law principle directly.
This
was the essence of the provision of s3 of the Code at the material
time as discussed above.
Again
and quite erroneously, the court a quo based its application of the
common law doctrine of common purpose on the codification of
conspiracy. It was of the view that the two are one and the same
concepts both under the Code and at common law.
They
are not.
It
is however not necessary that I burden this judgment with a
discussion of the differences between the two concepts. Suffice it to
say that they are provided for separately in the Code and have
different requirements.
On
the basis of the above, I am compelled to find that the court a quo
misdirected itself, and gravely so, in finding the appellants guilty
as it did on the application of a law that was not applicable in this
jurisdiction at the time of the commission of the crimes with which
the appellants were charged.
The
conviction of the appellants cannot stand and must be set aside.
This
however does not entitle the appellants to their acquittal for I must
now turn to consider whether the appellants were guilty as charged on
the basis of the provisions of s196 of the Code as it then was, the
law that the court a quo ought to have applied.
Whether
at the close of the State case there was evidence justifying the
continuation of the trial
Section
196 of the Code itself has seen some major changes since the
promulgation of the Code. These changes have seen a progressive
narrowing down of the applicability of the common law doctrine of
common purpose.
The
original s196 when the Code was enacted was repealed and replaced in
2016 through the provisions of the General Laws Amendment Act, 2016.
This amendment took effect on 1 July 2016.
Notwithstanding
that the trial of this matter was concluded in 2016 after the
amendment had taken effect, the applicable law in the trial of the
appellants remained the law that was in force in 2011 when the crimes
were allegedly committed. This is so because of the hallowed
principle of our law that guards against the retrospectivity of
statutes in general and of crimes in particular.
The
changes in the law may explain the joint but erroneous submission by
both counsel before us that the Code did not provide for instances
that fell to be determined under the doctrine.
It
does and at the material time, it did.
At
the material time, s196(1) of the Code provided as follows:
“196
Liability of co-perpetrators
(1)
Subject to this section, where -
(a)
two or more persons knowingly associate with each other with the
intention that each or any of them shall commit or be prepared to
commit any crime; and
(b)
any one of the persons referred to in para (a) (“the actual
perpetrator”) commits the crime; and
(c)
any one of the persons referred to in para (a) other than the actual
perpetrator (“the co-perpetrator”) is present with the actual
perpetrator during the commission of the crime; the conduct of the
actual perpetrator shall be deemed also to be the conduct of every
co-perpetrator, whether or not the conduct of the co-perpetrator
contributed directly in any way to the commission of the crime by the
actual perpetrator.”
The
entire section as cited above was in 2016, repealed and replaced by a
new section that deals with a different subject matter. A new
section, s196A was inserted to deal with the liability of
co-perpetrators who knowingly associate for common purpose of
committing a crime or crimes. It provides as follows:
“196A
Liability of co-perpetrators
(1)
If two or more persons are accused of committing a crime in
association with each other and the State adduces evidence to show
that each of them had the requisite mens rea to commit the crime,
whether by virtue of having the intention to commit or the knowledge
that it would be committed, or the realization of a real risk or
possibility that a crime of the kind in question would be committed,
then they may be convicted as co-perpetrators, in which event the
conduct of the actual perpetrator (even if none of them is identified
as the actual perpetrator) shall be deemed also to be the conduct of
every co-perpetrator, whether or not the co- perpetrator contributed
directly in any way to the commission of the crime by the actual
perpetrator.
(2)
The following shall be indicative (but not, in themselves,
necessarily decisive) factors tending to prove that two or more
persons accused of committing a crime in association with each other
together had the requisite mens rea to commit the crime, namely, if
they -
(a)
were present at or in the vicinity of the scene of the crime in
circumstances which implicate them directly or indirectly in the
commission of that crime; or
(b)
were associated together in any conduct that is preparatory to the
conduct which resulted in the crime for which they are charged; or
(c)
engaged in any criminal behavior as a team or group prior to the
conduct which resulted in the crime for which they are charged.”
As
indicated above, s196A does not have retrospective effect and is of
no application to the facts of this appeal.
Accepting
then as we must, that at the material time, the common law principle
of common purpose had been re-enacted with modification that
restricted its application, the liability of each accused person
stood to be proved on the basis of the provisions of s196 of the Code
as it then was.
Principally,
the State had to lead evidence tending to prove;
(i)
firstly that the appellants knowingly associated with the person who
killed the deceased;
(ii)
secondly that such association was with the intention that each or
any of them would kill or be prepared to kill the deceased; and
(iii)
thirdly, that the appellants were present with the actual perpetrator
when the fatal blow was delivered.
It
is however common cause that the scene of the crime was a busy
shopping centre where there was a beer outlet, a car wash, vendors,
including some who were cooking meals for sale, a flea market and
other members of the public who were waiting to use public transport.
This was a Sunday afternoon falling at the end of the month. The
crowd at the scene of the crime was not homogenous. It was made up of
these members of the public and members of the MDC-T who had
relocated from the first venue of their celebrations.
No
evidence was led that the crowd had a common intent.
The
first and second appellants alleged in their defence outlines that
they were at the shopping centre accompanying a friend whose shoe was
being repaired in the car park. The third appellant alleged that he
was attending a church service and adduced into evidence a video tape
that proved his attendance at the church. The video tape however only
recorded the church proceedings up to 12.30 in the afternoon.
The
alleged crime was committed after 12.30pm, between 2.00pm and 4.00pm.
It
was not in dispute that the fourth appellant, employed as a driver,
was sent to pick up crockery from the celebrations. When he saw the
disturbances at the shopping centre, he decided to make a U-turn. In
the process he picked up the first and second appellants.
It
is further common cause that the actual perpetrator of the crime, who
was unidentified, came from within the crowd that gathered at the
shopping centre during the melee.
Against
the backdrop that I have painted above, it is difficult to envisage
how the crowd, including the appellants, could have knowingly come
together with one intent for the purposes of the law.
In
any event, the evidence led a quo showed that the crowd had not come
together but that persons making up the crowd found themselves at the
shopping centre at the same time that the conflict between the police
and the members of the MDC-T erupted.
I
pause to observe that the cases where the common law principle of
common purpose was applied successfully in this jurisdiction
invariably involved a team or group of persons setting out to commit
a crime or crimes. The accused persons knowingly embarked on their
respective criminal enterprises. An appreciable number of the cases
involve a pair or teams of robbers: (See S v Mubaiwa & Anor 1992
(2) ZLR 362 (SC); S v Ndebu & Anor 1985 (2) ZLR 45 (SC); Matende
& Machokoto v S AD 55/79.
In
Chauke v S (supra), the accused persons were a group of prisoners
that teamed up to escape from lawful custody.
The
crowd in casu pre-existed the violence with no commonality unlike the
mob in S v Safatsa (supra).
In
that case, the mob gathered and formed with the specific intention to
attack the deceased in protest against an increase in the levies by
their local council, in which the deceased was the Deputy Mayor. The
mob had set out to attack the deceased and others who were viewed to
have voted for the increase in levies.
To
ascribe a common intention or individual mens rea to each member of
the crowd in such circumstances of this appeal in my view is to
stretch the applicability of the common purpose doctrine beyond its
highest water mark.
The
crowd that was at the scene of the crime did not plan the outing as a
criminal enterprise. It did not set out to attack the police.
Individual members of the crowd were not armed with stones when they
went to the shopping centre.
The
stoning of the deceased was unpremeditated by the crowd and the
regrettable tragedy was unforeseen. It was a riotous reaction to the
presence of the police.
Quite
understandably, at the close of the State case, there was no evidence
tending to show that the crowd had come together at any one stage.
Further and again understandably so, there was no evidence at the end
of the State case that the crowd harbored a single intention.
In
this regard, a contrast may be made to the facts in S v Safatsa and
Others (supra) where the court found that the accused shared a common
purpose with the crowd to kill the deceased and consequently the acts
of the mob were imputed to each of the accused.
Per
contra, in casu, there was no evidence led a quo that the crowd
coalesced around a single intention to assault and/or to attack the
police.
Instead,
the evidence from the State witnesses shows that the crowd had
different intentions as shown by their different reactions to the
presence of the police at the shopping centre. Some ran away. Some
remained where they were and only ran away to hide when the violence
unfolded. Some may have joined in the violence with unknown
intentions.
To
be fair to the respondent, it was never its contention that the crowd
had one intention. Some members of the crowd must have remained
strangers to each other with their separate and individual
intentions.
The
law as provided in s196 sought to penalise two or more people who,
knowingly, embarked on a criminal enterprise. It was not the
intention of this law to penalise two or more persons whose criminal
intentions may have coincided as may have happened with the crowd in
casu.
The
possibility that this is what in fact happened was not shifted beyond
a reasonable doubt.
I
have examined the evidence that was led a quo to establish if there
is any basis upon which I can infer that the crowd did come together
with the intention of killing the deceased.
I
find none.
The
crowd remained a typical weekend crowd found at any busy shopping
centre. There was no evidence at the close of the State case that it
had a common intention to commit any crime. The defence case did not
proffer such evidence.
Even
if one were to infer that some members of the MDC-T formed the
intention to repel the police with force, there is no evidence that
this intention was shared with the members of the public who then
knowingly associated with the political party in its alleged criminal
intent.
I
therefore find that at the close of the State case there was no
evidence that the crowd knowingly came together with the intention of
murdering the deceased and that the crowd in fact had that common
intention.
No
such evidence was adduced during the defence case.
On
the basis of the finding that I make above, the appellants were
entitled to their discharge on the main charge at the close of the
State case.
Assuming
that I have erred in making the above finding, the convictions of the
first three appellants of murder would in any event be invalidated by
the provisions of the repealed s196(8) which provided that:
“(8)
For the avoidance of doubt it is declared that this section may not
be used to convict a co-perpetrator of murder unless he or she was
present with the actual perpetrator while the victim was still alive
and before a mortal wound or mortal wounds had been inflicted.”
Because
the respondent was oblivious of the provisions of s196 in its
entirety, no evidence was led to show that the appellants were
present with the actual perpetrator when the deceased was felled by
the brick that caused the mortal wound.
In
the absence of such evidence, the law clearly provided at the
material time that the appellants could not be convicted of the
murder of the deceased.
It
is therefore my finding that there was no evidence a quo that the
appellants had knowingly associated with the actual perpetrator of
the crime with the intention of committing the crime or any crime and
that they were present with the actual perpetrator when the crime was
committed.
The
defence case did not supply the missing evidence.
The
requirements of s196 of the Code were not satisfied.
In
the absence of evidence that the appellants participated in the
commission of the crime as provided for in the Code, they cannot be
convicted. They are therefore entitled to an acquittal on the charge
of murder.
The
appellants were charged concurrently or in the alternative with the
crime of public violence. The crime is created by the provisions of
s36 which reads:
“(1)
Any person who, acting in concert with one or more other persons,
forcibly and to a serious extent -
(a)
disturbs the peace, security or order of the public or any section of
the public; or
(b)
invades the rights of other people; intending such disturbance or
invasion or realizing that there is a real risk or possibility that
such disturbance or invasion may occur, shall be guilty of public
violence and liable to a fine…..”
The
crime of public violence as re-enacted in the Code has similar
essential elements as the common law crime: These consist of the
unlawful and intentional commission by a number of persons acting in
concert, of acts of sufficiently serious dimensions which are
intended to violently disturb the public peace or invade the rights
of others.
The
crowd need not have acted with pre-meditation.
The
obstruction of the police from performing their duties as happened in
casu has been accepted at common law as constituting the common crime
of public violence. (R v Cele 1958 (1) SA 144 (N)). It constitutes
the crime of public violence as defined in s36 of the Code.
I
therefore find that the melee between the police and members of the
MDC-T at the second venue of the celebrations degenerated into acts
of public violence by the crowd that included members of the MDC-T.
In
view of the defence outlines filed in respect of each of the first
three appellants, the point of disputation in this case is whether
the appellants participated in the acts of public violence as alleged
or at all.
Whilst
it is largely unnecessary that I burden this judgment with an
analysis of all the evidence that was adduced at the trial, I wish to
comment in general that the evidence from all the State witnesses did
not tell a seamless story.
There
were too many loose ends.
The
scene was riotous and was very mobile and very fast moving.
Whilst
none of the witnesses could be expected to have had a helicopter view
of the scene, however, even from their different viewpoints, the
State evidence must have told the same consistent story, being the
version that the State wished to rely on to found the criminal
liability of the appellants.
Instead,
not only was the evidence remarkably disjointed, it was contradictory
in some respects.
An
impeachment of one of the witnesses by the State would have had the
effect of leaving only one story as the State's version of what
occurred at the material times.
The
evidence implicating the first and second appellant came from one
Inspector Nyararai who knew them both before the date of the alleged
crime. He was part of the officers led by the deceased, dispatched to
disperse the MDC-T members. He testified that upon their arrival at
the scene, he observed the first and second appellants in the
verandah of the bar chanting their party's slogans. It was his
further testimony that the two did not leave the front part of the
bar upon the arrival of the police but remained there chanting
slogans and inciting the crowd to attack the police by chanting “Kill
the frogs!” in apparent reference to the police.
The
testimony of Inspector Nyararai in this regard is contradicted
firstly by that of one Chikwira, who arrived at the scene before the
police did. Chikwira, a member of the public, had gone to the bar to
drink.
He
testified that all members of the MDC-T went into the bar upon the
arrival of the police. He was in the verandah, drinking a beer.
His
evidence in this regard was corroborated by the evidence of Mutsigwa,
Mushaninga and Magutarima.
Mutsigwa,
a police officer and driver of the police vehicle on the day in
question, testified that upon the arrival of the police, all the
people who were in the verandah of the bar fled.
Mushaninga,
a member of the stick of police officers who went into the bar with
the deceased, on the other hand testified that there were no members
of the MDC-T in the verandah when the police arrived.
Magutarima,
another police officer who went into the bar with Mushaninga also
testified that upon their arrival, all members of the MDC-T who were
in the verandah went into the bar and only a few elderly people
remained in the verandah. He and Mushaninga addressed this group and
ordered them to disperse which they did.
I
find the evidence of Nyararai unsafe to rely on in the circumstances.
He
is the only witness who testified that there were members of the
MDC-T in the verandah of the bar, including the first and second
appellants, who were chanting slogans and urging the crowd to attack
the police.
There
is other State evidence that the confrontation between the police and
the MDC-T members started at the back of the bar and it is there that
one youth urged the others to attack the police by shouting “kill
the frogs!” Before then, no one had urged the others to “kill the
frogs”.
No
effort was made by the State to tie these two versions together.
In
the result, I find that there was no reliable evidence at the close
of the State case upon which a court acting carefully, would convict
the first and second appellants of public violence.
Similarly,
the evidence identifying the third appellant as being present at the
scene on the day in question is unsafe.
It
comes from Mushaninga.
He
did not know the third appellant prior to the day of the crime. He
testified that he saw the appellant for a brief moment inside the bar
when the third appellant assaulted him with a stool frame.
Again
the same handicap that makes the evidence of Nyararai unsafe afflicts
the evidence of Mushaninga in identifying the third appellant.
If
one compares the evidence of Mushaninga to the other evidence led on
behalf of the State, it appears that Mushaninga had poor observation
skills on the day or poor recollection after the event. He did not
see the people who were in the verandah when the police arrived yet
the others in his company did. This is where Chikwira, one of the
State witnesses was, drinking his beer. He did not see any members of
the public at the shopping centre, yet the other witnesses did.
He
did not see any vendors at the shopping centre. The other witnesses
did and one of the vendors gave evidence as a State witness.
Before
entering the bar, he did not recollect stopping to address the
patrons who were drinking in the verandah of the bar. Magutarima
testified that he and Mushaninga did.
Again,
the respondent made no efforts to tie up these loose ends.
I
therefore find that at the close of the State case, the evidence
identifying the third appellant was manifestly unreliable.
The
first to third appellants were entitled to a discharge on the public
violence charge at the close of the State case.
In
view of the findings that I make regarding the liability of the first
and second appellants in this matter, the conviction of the fourth
appellant naturally falls away.
It
is also unnecessary that I determine the third issue in this appeal.
Following
their respective acquittals, the sentences imposed on each of them
must be quashed.
Disposition
The
appellants were entitled to a discharge at the close of the State
case on both the main and alternative/concurrent charges. This was so
because the State did not adduce sufficient evidence upon which a
court, acting carefully, might have convicted the appellants.
The
identification evidence of the third appellant was manifestly
unreliable.
No
evidence proving the appellants' guilt on both charges was adduced
in the defence cases.
The
first ground of appeal has therefore been sustained and succeeds.
In
keeping with the general position at law regarding costs in criminal
appeals, no order as to costs shall be made.
In
the result I make the following order:
1.
The appeal is allowed with no order as to costs.
2.
The judgment of the court a quo convicting the first to third
appellants of the crime of murder as defined in s47 of the Criminal
Law (Codification and Reform) Act, [Chapter 9:23], and the fourth
appellant as an accessory after the fact to the crime of public
violence as defined in s36 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23], is set aside and substituted with the
following:
“The
seven accused persons are found not guilty and are duly acquitted of
both the main and the alternative/concurrent charges.”
3.
The sentences imposed on the appellants are hereby quashed and set
aside.
4.
The first and third appellants are entitled to their immediate
release.
GWAUNZA
DCJ: I agree
MAVANGIRA
JA: I agree
Mtetwa
& Nyambirai, appellants' legal practitioners
The
National Prosecuting Authority, respondent's legal practitioners
