Criminal
Appeal
MUZENDA
J:
On
7 June 2019 the appellant was arraigned at Mutare Magistrates Court
facing a charge of “unlawful dealing in or possession of precious
stones” in contravention of section 3(1) of the Precious Stones Act
[Chapter
21:06].
The
state alleged that on 25 December 2018 and at Sakubva Bus Terminus,
Birchnough – Mutare Road, the appellant and one Kumbirai Karani,
unlawfully dealt in or possessed 5 pieces of diamonds weighing 14,80
carats and valued at $1,267-17 without being exempted in terms of the
said Act.
At
the close of the state case Kumbirai Karani was discharged, the
appellant was put on his defence.
He
was subsequently convicted and sentenced to 5 years imprisonment.
The
5 pieces of diamonds were forfeited to the state and were to be
handed over to the Ministry of Mines.
On
3 September 2019 the appellant noted an appeal against both
conviction and sentence and spelt out the grounds of appeal as
follows:
“1.0
Ad conviction
1.1
The learned Provincial Magistrate grossly erred to convict the
appellant when there were gross inconsistencies in the evidence of
the witnesses. The two state witnesses conflicted each other on where
the diamonds were allegedly recovered from as one indicated that the
diamonds were recovered from the appellant's right hand, whilst the
other one indicated that the diamonds were recovered from appellant's
right trousers pocket.
1.2
The court a
quo
erred
grossly when it made a finding that the appellant had implicated the
other co-accused as the owner of the diamonds, hence was the one who
was in possession of diamonds. That finding by the court is both
factually and legally faulty.
2.0
Ad
Sentence
The
sentence that was imposed by the learned Provincial magistrate is
disturbingly harsh in its excessiveness as to induce a sense of shock
and the High Court is going to interfere with it in that:
(i)
the court a
quo
erred when it did not make a finding that the reasons that were
proffered by the appellant amounted to special circumstances.
(ii)
the court a
quo
did not give reasons why it reflected the reasons proffered by the
appellant were really special reasons.”
BACKGROUND
According
to the state precis, the appellant was employed as a police detail by
the Ministry of Home Affairs and resided at 2914 Crescent, Warren
Park, Harare. On 25 December 2018 at around 1800 hours, Detective
Assistant Inspector Dhliwe Mpofu received information that the
appellant was in possession of diamonds and had boarded a vehicle
travelling from Chiadzwa to Mutare.
The
detective then teamed up with Detective Assistant Inspector Mashizha,
Detective Sergeant Major Manhivi and Detective Constable Chidhakwa
and proceeded to intercept the appellant at Sakubva bus stop along
Birchnough–Mutare road.
The
detectives identified themselves to the appellant by producing their
police identity cards. Detective Assistant Inspector D. Mpofu
searched the appellant and appellant was found with five pieces of
diamonds in his right hand. The other members of the team were
witnessing the search being conducted.
The
appellant implicated his co-accused as the owner of the recovered
diamonds.
Appellant
did not have a permit authorising him to deal or possess diamonds.
The
five pieces of diamonds weighed 14.80 carats and were valued at
$1,267-17.
On
the date of hearing of the appeal we allowed Mr Ndlovu
to amend appellant's defective notice of appeal on the portion of
the relief or prayer sought. That amendment was done by consent of
the state counsel.
In
his submissions, appellant's counsel contended that the record
exhibits material discrepancies between what is contained in the
state outline, and also what is said by Detective Assistant Inspector
Mpofu.
In
his own oral submissions Mr Ndlovu
repeated that “there are also minute variations which are apparent
from the evidence he gave which if holistically considered” should
have put Detective Assistant Inspector Mpofu's credibility to
question and create a reasonable, if not an actual doubt in the state
case entitling the appellant to an acquittal.
Mr
Ndlovu
attacked the evidence of Detective Assistant Inspector Mpofu
stretching from the nature of the report the police detail got to the
number of people who were alleged to have possessed diamonds, and
more particularly as to where Detective Assistant Inspector Mpofu
recovered the diamonds from.
He
urged the court to conclude that the detective's narration of what
transpired glittered with glaring inconsistencies.
On
p24 of the record of proceedings the evidence of Detective Assistant
Inspector Mpofu is captured as follows:
“accused
was seated inside the motor vehicle on the front passenger seat. I
observed accused putting his right hand, whilst it was still in his
pocket, a struggle ensued eventually I recovered 5 pieces of diamonds
clasped in his palm.”
Detective
Assistant Inspector Mpofu was consistent on this aspect and we fail
to see the alleged inconsistencies being relied upon by the
appellant, in any event not every inconsistency affects the
credibility of a witness.
On
p41 of the record of proceedings, Detective Constable Collen
Chidhakwa told the court that:
“Detective
Assistant Inspector Mpofu then searched accused and he recovered 5
pieces of diamonds from the accused (appellant).”
And
on p52 the police detective added:
“I
saw Detective Assistant Inspector Mpofu putting his hand into the
pocket and accused's hand was also in the pocket.”
It
is apparent the mere comparison of the two state witnesses'
evidence on record shows clearly what happened on the day in
question.
Upon
search of the appellant by detectives, appellant reacted by trying to
secure the 5 pieces of diamonds contained in his trousers pocket by
clasping them with his right hand, the detective saw the appellant's
movement and placed his hand in appellant's pocket, thereby
recovering the diamonds from the appellant's hand.
We
fail to see the nature of inconsistencies nor discrepancies that can
affect the witnesses credibility.
All
in all the evidence of the police details shows a smooth flow of
their narrations of the events and we see no basis of interfering
with the founding of credibility by the trial court. The appeal
against conviction has no merit and it is dismissed.
During
the hearing of the appeal we asked Mr Ndlovu
to address us on the aspect of appellant's appeal against sentence
more particularly on whether on record there were special
circumstances, he correctly in our view admitted that there were
none.
It
was a wise concession and he went on to abandon the ground of appeal
against sentence. The five year imprisonment is the mandatory
sentence provided by the statute, in the absence of established
special circumstances, and that onus lay on the appellant, the trial
court had no option than to pass the mandatory penalty.
There
was nothing inducing a sense of shock on the aspect of sentence and
equally the ground of appeal against sentence has no merit.
Consequently
the following order was given:
The
appeal be and is hereby dismissed.
MWAYERA
J agrees ________________
Gonese
and Ndlovu,
appellant's legal practitioners
National
Prosecuting Authority,
State's legal practitioners
1.
See S v Lawrence & Ors 1989 (1) ZLR 29 (S); S v Dube S-225-92
