MUSAKWA
J: The appellant was charged with two counts of robbery to which he pleaded not
guilty. The first count was committed at house number 823 Wallis Road, Mandara, Harare. During the
commission of this count, a Mitsubishi Pajero motor vehicle, registration
number 762-516 W, an assortment of household electronic gadgets, personal
documents and cash were stolen. The second count was committed at house number 27 Braemer Road, Mount
Pleasant, Harare,
where a Land Rover Discovery vehicle, registration number AAT6367 was stolen.
Following his conviction on both counts he was sentenced to a total of twenty
years imprisonment of which three years were suspended for five years on condition
of good behavior. He noted an appeal against both conviction and sentence.
The
evidence led by the state was to the effect that on 20 November, 2000 Priscilla
Chitukurudzi, the complainant in the first count drove home in her Mitsubishi
Pajero motor vehicle around 5.30 p.m. When she turned into the driveway a white
B.M.W motor vehicle followed her. Some people disembarked from the B.M.W
vehicle, produced guns and told her to get out.
She did not comply and as she drove into the premises they followed her.
Inevitably she could not go further as she had to stop by the swimming pool. The
driver's window to her vehicle was smashed with a flower pot.
She
was dragged from the vehicle and assaulted. As a result of the assault she
sustained cuts and bruises as well as loose front teeth. Guns were also pointed
at the children. In the process household electrical goods as listed in exhibit
one were stolen. The stolen goods were loaded in the complainant's vehicle. The
complainant later identified the property after it had been recovered by
Police.
In
respect of the second count the complainant, Shang Menquan testified that on
the 20th November, 2000 he arrived home from Ruwa at about 7.30 p.m.
As he was about to disembark from his vehicle in order to open the gate a BMW
vehicle stopped behind him. About five men emerged and a pistol was pointed at
him. When the complainant's friend came from the house in reaction to the
commotion, a firearm was also pointed at him and he retreated. The complainant
was assaulted in the process. Some gun shots were also fired. The complainant's
vehicle, a Land Rover Discovery was then stolen.
Five
other state witnesses testified. The evidence shows that the appellant was
residing at house number 11
Birkdale Road, Glen Lorne together with his
associates as well as three of the state witnesses. The appellant's associates
were Frank Chadoka, Ngoni Motsi (a co-accused), Kenny and Rita. The appellant
had also invited Anne Mpalume, a niece to take up residence at the house. There
were two domestic servants employed by Frank namely, Brian Musiiwa and Chineni
Nhidza. The two stolen motor vehicles as
well as other goods belonging to Priscilla Chitukurudzi were taken to this
house on the same day they were stolen. These goods were recovered by Police
when they conducted a raid on the house on 30th November, 2000. The
appellant was subsequently arrested in a room at Holiday Inn where he had taken
up residence.
In
convicting the appellant, the trial court relied on the evidence of Anne
Mbaluma, Tonderai Maringosi and Brian Musiiwa. In the view of the court, which
view I agree with, the evidence from these witnesses implicated the appellant
in the theft of the two vehicles forming the subjects of the two counts.
In
the notice of appeal filed on his behalf, the appellant raised eleven grounds
of appeal against his conviction as follows:
1.
That the learned magistrate erred in convicting the
appellant when there was no direct evidence against him.
2.
That all the witnesses who gave evidence for the state
indicated that the appellant was not residing at the address where the motor
vehicles were found but occasionally came as a visitor.
3.
That during the period the appellant visited this
place, the appellant never drove any of the stolen vehicles.
4.
That there was no evidence connecting the appellant
with the stolen vehicles.
5.
That there was no evidence direct or indirect
connecting the appellant with the commission of the offence.
6.
That the learned magistrate convicted the appellant
purely on the basis that he visited the house where the vehicles had been
stored and where the police found the vehicles.
7.
It is respectfully submitted that there was no clear
evidence as to who had committed the offence, namely that all the offences had
been committed by Frank Chadoka who absconded and it is clear from all the
evidence that he was given a proper warning, most likely by the police
themselves to abscond before the place was raided.
8.
The police were unable to explain how Frank Chadoka
could have known that the police intended to raid the premises and why he was
not arrested after the premises had been raided. There was no effort by the
police to have Frank Chadoka arrested.
9.
The evidence from the State witnesses was that the
house where the vehicles were found was leased by Frank Chadoka as a tenant. He
had invited a friend, Raymond Maringosi, (the appellant) to reside with him.
The appellant had no relation with Frank Chadoka. It is important to note that
this was the evidence from the State witnesses. The appellant visited his
friend who was not directly connected with the theft of the motor vehicles.
10.
That the learned magistrate erred by sating that he was
convicting appellant because he did not believe his story. It is respectfully
submitted that an accused person is not convicted because he has not given a
story acceptable to the presiding magistrate but should be convicted on
evidence beyond reasonable doubt. It is not a question of comparing the State's
version and the accused's version but of evidence proving the guilt of the
accused person.
11.
It is respectfully submitted that for the reasons
above, the conviction should be set aside and the accused person found not
guilty.
As against sentence, the appellant
raised four grounds of appeal, whose net effect was that the sentence imposed
is excessive and induces a sense of shock. At the hearing of the appeal, Mr Tsvivama argued on three main
grounds. He argued that the lower court erred in accepting the incriminating
evidence of Anne Mpalume in view of some discrepancies between such evidence
and that of Brian Musiiwa. He also argued in the alternative and in respect of
the second count, that the trial court erred in convicting the appellant by
employing the doctrine of common purpose when there was no evidence that he
formed common purpose with the persons who stole the vehicle forming the
subject of the second count. Finally he argued that the sentence imposed on the
appellant was excessive in the circumstances of the matter.
THE ISSUES
1. Whether the
trial court erred in relying on the evidence of accomplice witnesses.
2. Whether the
appellant was properly convicted in respect of the second count on the basis of
common purpose.
3. Whether the
sentence imposed was appropriate in the circumstances.
ACCOMPLICE EVIDENCE
Brian Musiiwa and Tonderai Maringosi, the
appellant's cousin were treated as accomplices and warned in terms of the
Criminal Procedure and Evidence Act [Chapter
9:07]. There does not appear to have
been a basis for the State to treat these two witnesses as accomplices. It
seems that the prosecutor took a cue from the fact that Brian Musiiwa had been
arrested together with Anne Mpalume when Police raided the house. Police
arrested the two as they are the ones who were found at the house where they
recovered the stolen property. However, there is clearly no evidence to suggest
these two witnesses associated with the appellant and others with any criminal
intent. These are not witnesses with a motive to lie or who at some stage were
accessories before or after the fact.
As
regards Tonderai Maringosi, he had been in contact with the appellant and his
associates subsequent to the Police raid. He is related to the appellant and he
used to visit house number 11
Birkdale Road. It was his testimony that after the
Police raid the appellant had tried to dissuade him from returning to his home
and driving his green Nissan vehicle which Police were looking for.
Burchell and
Hunt in South African Criminal Law And
Procedure have this to say about an accomplice -
"An accomplice is one who takes part
in the commission of the crime, other than the perpetrator(s) and other than
the accessory after the fact. Accomplice liability is distinct from that of the
perpetrator, being based on the accomplice's own unlawful conduct and fault
(mens rea) but it is also liability which is accessory in nature in that there
can be no question of accomplice liability without a perpetrator who commits
the crime."
Although
Tonderai Maringosi gave a lift to appellant and company as well as buying them
food, there is nothing to suggest that he did so with the intention of harboring
them from Police and thus obstructing the course of justice. Mr Tsivama for the appellant took issue
with the manner in which the trial magistrate admonished Tonderai Maringosi.
The warning was indeed flawed but nothing turns on it in light of the
observation that he was not an accomplice.
Mr Tsivama also took issue with the
discrepancies between the evidence of Anne Mpalume and that of Brian Musiiwa,
especially on the sequence and the time of arrival of the stolen vehicles. I do
not think that affects the overall thrust of the evidence. It would be too much
to expect the witnesses to have kept a record of the movements of the appellant
and his associates. If they had given identical evidence, the likely contention
would have been that they connived to incriminate the appellant.
It
was also submitted that Anne Mpalume must have been unduly influenced by Police
to falsely incriminate the appellant. This is attributed to the fact that she
gave two statements whose contents were different in some respects. The witness
appears to have given a satisfactory explanation concerning the two statements.
In any event it was not her initiative to give the additional statement. The
defense should have quizzed the investigating officer.
Overall,
Anne Mpalume's evidence seriously incriminates the appellant if one considers
the nature of their relationship. There was no suggestion that there was bad
blood between them. The trial court found her to be credible and it is not one
of the grounds of appeal that it misdirected in finding that she was a credible
witness.
COMMON PURPOSE
Mr
Tsivama also submitted that there was no evidence on which the appellant's
liability could be based on common purpose. He highlighted the disparities in
the times and places of the commission of the offences as well as when the
vehicles arrived at house number 11
Birkdale Road. He was of the view that the
appellant could not have been part of the persons who robbed the second
complainant as there was evidence to suggest that the complainant was trailed
all the way from Ruwa. The State, represented by Mr Mugabe also conceded that there was no evidence incriminating
the appellant in respect of the second count.
With
respect I do not agree with both counsel in this regard and I am of the view
that the concession by Mr Mugabe is
not properly made for the reasons that follow.
It
is pertinent to consider the factual background in more detail. On the day of
the robberies, the evidence establishes that the appellant and his colleagues
left the house driving in a white BMW vehicle. Later Frank returned driving a
Mitsubishi Pajero that had no passenger window. There was broken glass on the
passenger seat and floor. A short time afterwards the appellant arrived driving
the Land Rover Discovery. The appellant assisted in off-loading goods that were
in the Pajero with the broken front window. The goods that he assisted in
offloading included a colour television set stolen from the complainant in the
first count, which television set was placed in the lounge. Anne Mpalume
testified on seeing a brown handbag with the particulars of Priscilla
Chitukurudzi in the pantry. The contents of the handbag were destroyed by the
appellant and Frank. This was observed by Anne Mpalume as she stood by the
swimming pool. Priscilla Chitukurudzi's identity card was later recovered
intact by Police.
When
Police raided house number 11
Birkdale Road some people fled leaving behind Anne
and Brian whom they arrested. The flight was confirmed by Anne and Brian.
Tonderai testified on his meeting the appellant, Frank and Ngoni. The three
discussed in his presence the Police raid and their flight from the house.
Tonderai was later told by the appellant that the vehicles at the house were
stolen. The appellant had also told Tonderai that he had used his passport.
This is the passport that was in Simon Nyika's name but with Tonderai's
photograph. Tonderai was also requested by the appellant not to go back to his
home or to use the Nissan Sunny vehicle as Police were on the lookout for him.
When Police officers raided the Glen Lorne house, they also recovered three
pistols and a .303 rifle and magazine. In the appellant's hotel room they
recovered an identity card with appellant's photograph but bearing a different
name.
The
trial court came to the conclusion that the two robberies were planned by all
those who were involved. It took note of the modus operandi and concluded that the accused persons must have
acted together on both occasions. I find no fault in this reasoning taking into
account the evidence that I have highlighted.
In
my view, while there is no reliable evidence on the identification of the
appellant and his co-accused, there is sufficient circumstantial and other
direct evidence tending to link the appellant to the offence. Burchell and Hunt
(supra) have this to say in respect of common purpose at page 307-
"Where two or more people agree to
commit a crime or actively associate in a joint unlawful enterprise, each will
be responsible for specific criminal conduct committed by one of their number
which falls within their common design. Liability arises from their 'common
purpose' to commit the crime."
It
follows from the above quote that there need not be express agreement to commit
an unlawful act. Both counsels must have lost sight of the words "actively associate"
used in the quote. In the case of Safa
Ncube v S S.C 90/90 McNally J.A had this to say about common purpose-
"The essence of the doctrine of
common purpose is that when two or more persons associate in a joint unlawful
enterprise, each will be responsible for any acts of his fellows which fall
within their common design or object....... Association in a common design or
object or purpose is, in this case, the key issue."
Therefore,
there need not be evidence of the appellant's direct participation in the two
robberies. His association with the others and the proceeds of the robberies was
sufficient to bring him within the ambit of the common purpose. In addition the
sheer cumulative nature of incriminating evidence against the appellant does
not leave one with a reasonable doubt that he committed the offences.
On
the basis of the foregoing, the appeal against conviction cannot succeed and
shall be dismissed.
AD SENTENCE
There
is no doubt that offences of this nature merit severe punishment. The way the
offences were committed and the overall manner in which the appellant and his
associates conducted themselves is a typical manifestation of organized crime.
The public needs protection from such a menace. However, the appellant did not
benefit much as the bulk of the stolen property was recovered.
In casu,
the trial court did not suspend any portion of the sentence imposed on
condition of good behaviour. I am aware that a number of authorities have criticized
the practice of imposing a lengthy custodial sentence and then suspending a
portion on condition of future good behaviour. In this respect see the cases of
Francis Shitto and Phillip Shitto v S SC 75/97, S v Gorogodo 1988 (2) ZLR 378(SC) and A-G v Paweni Trade Corporation (Pvt) Ltd & Others 1990 (1) ZLR 24 (SC). The
rationale behind that criticism is that a suspended sentence serves two
purposes. It acts as a deterrent as well as helps rehabilitate an offender.
However, a lengthy prison sentence serves the same purpose. Therefore, if a
long prison term fails to rein in an offender it is unlikely that a suspended
sentence would achieve that purpose. I would want t believe that the trial
court was guided by these principles in not suspending a portion of the
sentence it imposed on the appellant.
It
is my view however that the trial court could have adopted a different
sentencing, an approach that is now preferred when dealing with multiple
counts. It could have assessed one globular sentence for the two counts.
Alternatively, it could have ordered a portion of the sentence in one of the
counts to run concurrently with the sentence in the other count. In this
manner, it palliates the overall effect of the sentence. (See the case of S v Sifuya 2002 (1) ZLR 437(H))
Taking
into account the factors I have referred to above, I am of the view that the
sentence imposed in the matter is manifestly excessive and should be set aside.
Taking
both counts as one for the purposes of sentencing, I substitute the sentence
imposed by the trial court by one of fifteen years imprisonment.
In
the result, I make the following order:
- The appeal against conviction is hereby dismissed.
- The appeal against sentence is allowed.
- The sentence imposed by the trial court is hereby set
aside and in its place the following is substituted-
"Fifteen years
imprisonment."
MAKARAU JP
agrees.
Sawyer & Mkushi, appellant's legal
practitioners
Attorney-General's
Office, respondent's legal practitioners