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HMT08-20 - LIKANI SITHOLE vs THE STATE

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Procedural Law-viz final orders re ex tempore judgment iro entitlement of litigants to written reasons for judgement.
Procedural Law-viz criminal appeal.
Unlawful Entry-viz section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Sentencing-viz unlawful entry.
Unlawful Entry-viz aggravated unlawful entry re section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Procedural Law-viz court management re obligations of the court toward unrepresented accused persons iro fair trial rights.
Procedural Law-viz rules of evidence re circumstantial evidence iro inferential reasoning.
Procedural Law-viz appeal re findings of fact made by the trial court.
Procedural Law-viz appeal re the exercise of discretion made by the primary court.
Sentencing-viz compensatory orders.
Sentencing-viz restitution.
Procedural Law-viz rules of evidence re circumstantial evidence iro evidence aliunde.
Procedural Law-viz rules of evidence re defences iro obligations of the court to make findings on all defences raised by an accused person.
Procedural Law-viz rules of evidence re corroborative evidence iro competent witness.
Procedural Law-viz rules of evidence re corroborative evidence iro compellable witness.
Procedural Law-viz rules of evidence re competent witness iro corroborative evidence.
Procedural Law-viz rules of evidence re compellable witness iro corroborative evidence.
Unlawful Entry-viz the doctrine of recent possession.
Procedural Law-viz onus re burden of proof iro factual issues in doubt.
Procedural law-viz onus re burden of proof iro issues of fact in doubt.
Procedural Law-viz rules of evidence re Defence Outline.
Procedural Law-viz State Outline re prevaricative evidence iro inconsistencies between the State Outline and heads of argument.
Procedural Law-viz State Outline re inconsistent evidence iro discrepancies between the State Outline and heads of argument.
Procedural Law-viz onus re burden of proof iro the doctrine of recent possession.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Procedural Law-viz burden of proof re the presumption of innocence iro the doctrine of recent possession.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Procedural Law-viz rules of evidence re findings of fact iro evidential concessions.
Procedural Law-viz rules of evidence re admissions iro unchallenged evidence.
Procedural Law-viz rules of evidence re admissions iro undisputed averments.
Procedural Law-viz rules of evidence re admissions iro uncontroverted submissions.
Sentencing-viz restitution re valuation of loss.
Sentencing-viz restitution re quantum of loss.

Defence Outline, State Outline re: Approach, Testimonial Discrepancies and Prevaricative or Inconsistent Evidence


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

Findings of Fact re: Assessment of Evidence, Inferences, the Cardinal Rule of Logic and Evidentiary Concessions


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

Unlawful Entry, Aggravated Unlawful Entry, Housebreaking, Criminal Trespass and the Doctrine of Recent Possession


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

Subpoena, Witness Summons or Compellable Witness, Subpoena Duces Tecum and the Claim of Privilege


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

Court Management re: Conduct of Trials, Obligations Toward Unrepresented Accused and the Adherence to Fair Trial Rights


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

Direct and Circumstantial Evidence, Causation, Inferential Reasoning, Confessions & the Principle of Evidence Aliunde


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

Corroborative Evidence re: Approach and Principle that Lies Told By Accused Amount to Corroboration of State Witnesses


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

Onus re: Evidential Standard and Burden of Proof iro Approach and the Presumption of Innocence


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

Sentencing re: Unlawful Entry, Aggravated Unlawful Entry, Housebreaking and Criminal Trespass


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”...,.

As regards sentence, the value of $2,500 constituted value which was not recovered and the appellant never challenged that value at all.

The value was supplied by the complainant and there is no misdirection by the court a quo in ordering restitution amounting to that value.

Hence the following order is returned:

The appeal be and is hereby dismissed in its entirety.

Sentencing re: Approach iro Compensatory Orders or Restitution


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”...,.

As regards sentence, the value of $2,500 constituted value which was not recovered and the appellant never challenged that value at all.

The value was supplied by the complainant and there is no misdirection by the court a quo in ordering restitution amounting to that value.

Hence the following order is returned:

The appeal be and is hereby dismissed in its entirety.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule


On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”...,.

As regards sentence, the value of $2,500 constituted value which was not recovered and the appellant never challenged that value at all.

The value was supplied by the complainant and there is no misdirection by the court a quo in ordering restitution amounting to that value.

Hence the following order is returned:

The appeal be and is hereby dismissed in its entirety.

Sentencing re: Theft and Shoplifitng


As regards sentence, the value of $2,500 constituted value which was not recovered and the appellant never challenged that value at all.

The value was supplied by the complainant and there is no misdirection by the court a quo in ordering restitution amounting to that value.

Criminal Appeal (Reasons for Judgement)

MUZENDA J: On 27 November 2019 we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow, these are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances, he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour, a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

AD CONVICTION

1. The honourable court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The honourable court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The honourable court a quo erred in sentencing the appellant to restitute the sum of $2,500-00 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.

BACKGROUND

The state alleged that on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019 complainant reported the matter to the police, leading to the recovery of some of the property stolen. Complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and in his defence, stated that he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole to inform him what he had done and the reason for doing so. He denied ever going to complainant's residence at all.

It is not disputed by the defence that the complainant left for South Africa in 2018 leaving her property secured in her house, when she returned in January 2019, she discovered that her house had been broken into and property stolen. Some of the stolen property was recovered from the appellant by the police during investigations, the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the state the learned magistrate properly in our view applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused but should be inconsistent with his innocence.” 1

The record of proceedings clearly in our view shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belong to the complainant.

We do not accept the argument by the state which submitted in its heads that it is not clear as to how the complainant's property was broken into, and that complainant's relatives might have taken the property.

That inference is farfetched in our view;

(i) first the appellant does not say he got the property from complainant's contacts;

(ii) secondly in its own papers the state contends that complainant's house was broken into and that various properties were stolen, some of which was found in appellant's possession and others from those who had bought from the appellant.

It is true that an accused has no onus to prove his innocence but in this case surely he has a duty to prove his possession as an innocent one.

He ought to have at least called his brother and son to come and explain how they came to possess complainant's property which was found in appellant's possession or sold by the appellant.

The appellant did not challenge much of the state's evidence and could not allege that the same property which complainant claimed to be hers belonged to appellant's brother and son, he stated that he was willing to compensate complainant why would appellant offer to compensate complainant if his possession or acquisition of that property was innocent? Further, if the appellant's intention was to safeguard the property why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the state was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

As regards sentence, the value of $2,500-00 constituted value which was not recovered and the appellant never challenged that value at all.

The value was supplied by the complainant and there is no misdirection by the court a quo in ordering restitution amounting to that value.

Hence the following order is returned:

The appeal be and is hereby dismissed in its entirety.

MWAYERA J agrees ________________



National Prosecuting Authority, State's legal practitioners

Zimbabwe Lawyers for Human Rights, accused's legal practitioners


1. R v Bloom 1939 AD 188 at p202-203; S v Makunyanga HH179/2013; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363

1 R v Bloom 1939 AD 188 at p202-203

S v Makunyanga HH179/2013

S v Shomwa 1987 (1) ZLR 215

R v Sibanda 1965 RLR 363

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