Criminal
Appeal
MUZENDA
J:
The
appellant, Maxwell Marangwanda aged 56 years, was charged and
convicted of assault as defined in section 89(1)(a) of the Criminal
Law (Codification and Reform) Act [Chapter
9:23]
where it is alleged that on 29 August 2018 at Nyachityu Business
Centre, Marange, Mutare, the appellant hit Patson Chakawanda twice on
his arms with an iron bar.
On
27 February 2019 the appellant was sentenced to 12 months
imprisonment of which 3 months imprisonment was suspended for 2 years
on condition accused does not during that period commit any offence
involving violence for which he is sentenced to imprisonment without
the option of a fine, leaving an effective prison term of 9 months.
On
5 March 2019 appellant noted an appeal against both conviction and
sentence and outlined the following as grounds of appeal:
“1.
AD CONVICTION
(a)
The learned trial Magistrate erred at law and facts in convicting the
appellant when the evidence led by the State was totally inadequate
for the purposes of securing a conviction. The conviction was based
on a single witness, the complainant who was not credible. This is
because the other State witnesses did not corroborate the evidence of
the complainant.
(b)
The learned trial Magistrate misdirected herself by accepting the
evidence of the complainant which was not corroborated by the
evidence of the other two witnesses.
(c)
The learned Magistrate erred and misdirected herself by putting onus
on the appellant when all that was required of appellant was to offer
an explanation which is possibly true.
(d)
The learned Magistrate erred and misdirected herself in law and fact
in misinterpreting the medical affidavit and reaching a conclusion
that the injuries were as a result of an assault when they could have
been caused by complainant falling as he was drunk.
(e)
The learned Magistrate erred and misdirected herself in failing to
properly appraise the credibility and testimony of appellant and
giving reasons why such evidence was rejected.
(f)
The learned Magistrate erred and misdirected herself in making a
finding of facts that the State had discharged its onus of proving
the essential elements of the crime beyond reasonable doubt as is
required by the law.
2.
AD SENTENCE
(i)
The learned Magistrate erred in imposing a sentence that is
disturbingly disproportionate to the gravity of the crime that is to
say the sentence is manifestly excessive and so harsh as to cause a
sense of shock.
(ii)
The learned Magistrate misdirected herself by overemphasising the
appellant's crime and under estimating the person, character and
circumstances of the crime resulting in the miscarriage of justice.
(iii)
The learned Magistrate misdirected herself by failing to consider
non-custodial forms of punishment like a wholly suspended sentence, a
fine, community service and/or a combination of the above. More so
the penal provision provides for a fine.
(iv)
The learned Magistrate misdirected herself by failing to take into
account the mitigation by appellant and to indicate what portion of
the sentence was modestly reduced as a result of these mitigatory
circumstances.”
EVIDENCE
LED ON BEHALF OF THE STATE
The
complainant Patson Chakawanda told the trial court that he had known
the appellant since 1995. He knew the reason why appellant was in
court, the appellant had assaulted him on 29 August 2018.
On
that date complainant was coming from Mutare when he decided to go to
appellant's shop to buy opaque beer commonly called supa. Upon
arrival he shook appellant's gate, there was no response, the
witness waited assuming that appellant had heard the shaking. The
appellant came from behind, did not ask what complainant wanted but
then struck complainant on the arm.
The
complainant ventured to ask the appellant why he was assaulting him
appellant did not respond but went on to hit the other arm.
Complainant
screamed and because of the assault fainted.
In
that condition the complainant regained consciousness whilst he was
then by a fowl run. He was in pain.
Upon
gaining consciousness he recalled appellant summoning Lovemore
Nyadongo to come to the scene and check whether he could identify the
complainant.
Nyadongo
brought a torch and positively identifies complainant as his uncle.
The
appellant told Lovemore Nyadongo that complainant intended to steal
chickens but Nyadongo disbelieved appellant's allegation indicating
that complainant could not possibly steal since as a pensioner he had
his own money.
Appellant
went on to call another person his neighbour, who obliged to
appellant's call. Appellant went on to tell the neighbour that he
(appellant) found complainant surrounded by dogs and that complainant
tried to jump a wire that was about 3 metres. The neighbour called by
the appellant pointed out that complainant was in pain and needed
hospital attention but complainant did not accede to the issue of
hospital.
The
appellant went on to call yet another neighbour who heeded to
appellant's call upon that third neighbour's arrival, appellant
explained to the neighbour that he had found complainant in his fowl
run.
Complainant
was then taken to Bocha clinic.
Under
cross-examination he told the court that he arrived at appellant's
place at around 8-9pm. Complainant told the court that he was not
intoxicated he had taken only one supa. He further testified that he
could not have been found by appellant at the fowl run for that would
have meant that he would have jumped the perimeter fence coupled with
his age (74 years) he would have scaled the fence.
He
did not see what hit his arm but he believed it was a metal bar.
As
far as he recalled he fell unconscious at the gate and appellant
lifted him up to the fowl run. He did not pace up and down in
appellant's premises, he only did so when he regained consciousness
and did so out of pain.
One
clear observation can be deduced from complainant's evidence. He
was hit from behind by a hard object and screamed.
Appellant
did not leave the scene thereafter. He then summoned three of his
neighbours to the scene and Lovemore Nyadongo positively identified
the complainant. When the second neighbour arrived at the scene he
observed that complainant was in pain and needed medical attention.
There
is no break on the chain of events and accused did not at all the
stages explain how the complainant had sustained the pain observed by
one of the neighbours.
He
deliberately concealed the information.
The
second witness called by the State was Lovemore Nyadongo.
He
knows both appellant and complainant. On 29 August 2018 he was woken
up by his wife after hearing someone screaming. He took a torch and
went where the cry was coming from. He heard appellant calling out
whether it was him and he confirmed. He was told by the appellant
that appellant had caught someone at the fowl run and had entered his
yard.
The
witness jumped the wire to gain entrance and the wire he jumped is
one and half metres high.
Upon
arrival by the witness he saw appellant, his worker and wife, he was
asked whether he knew complainant, he knew him, of importance, when
Lovemore Nyadongo arrived at the scene he saw that complainant was
severely injured on his hands.
Lovemore
Nyadongo asked appellant how the complainant sustained a fracture on
his hands, he was told by the appellant: “I saw this guy jumping
wire and had found him surrounded by dogs and upon trying to jump
again he then fell.”
Nyadongo
did not perceive any dogs barking but heard cry screams.
Appellant
indicated to the witness that he wished to call his neighbour Mr
Mutongo to come and see the complainant.
Later
appellant left the witness.
Meanwhile
the witness saw complainant crying, walked towards the witness'
homestead, he fell in a pit. The witness lifted him from the pit,
complainant could not help himself, he was in a confused state.
Under
cross-examination by the defence he reiterated that when he was
called to the scene complainant had sustained a broken arm.
After
the examination of the complainant by a medical doctor he then learnt
that both hands had been fractured.
To
the witness the complainant was average drunk.
He
only saw footprints at a later stage belonging to complainant and
they were both inside and outside appellant's residence.
Felix
Majaya, a police detail was called by the state.
The
piece of evidence crucial to this appeal from this witness is what he
was told by the appellant.
The
appellant told the police that complainant had been robbed and he
went on to get into appellant's fence.
The
appellant later told the police that complainant wanted to steal
chickens.
The
witness told the court a
quo
that the appellant gave different versions.
The
appellant testified.
He
is 58 years old. He saw complainant at 9pm behind his fowl run, he
was the first person to see complainant. When he saw complainant he
woke up his employee, Clever Nyahotsi. Whilst he was with Clever,
complainant jumped into the paddock, Clever went towards complainant
and had dogs. The appellant went where Clever and complainant were
and asked complainant to sit down.
He
saw Lovemore Nyadongo coming and went where complainant was seated.
Lovemore
confirmed to appellant that complainant was his uncle.
He
decided to call another neighbour and when he returned he found
Clever and complainant seated inside the yard.
When
appellant came to the place where complainant was seated he heard for
the first time from Godfrey that his hands had been injured.
It
was Godfrey who proposed to the appellant that they should go to the
hospital because complainant was crying.
The
footprints did not lead to the main gate he said but behind his
house.
He
did not hear any scream from complainant. He does not know why
complainant would allege that he assaulted him. He had woken up to
protect his chickens and thought that complainant was a thief.
This
is the evidence which was presented before the court a
quo.
This is the evidence which the appellant impugns saying it was not
adequate to prove the state case beyond a reasonable doubt.
It
is not in dispute that the court a
quo
was faced with a single witness, the complainant.
In
terms of section 269 of the Criminal Procedure and Evidence Act, it
is competent to convict an accused on the evidence of a single
witness.
What
is important in such a scenario is for the trial court to be alive to
the fact that where there is only one single witness to the crime
special evidential rules apply.
What
the trial court should try to do is to guard against the obvious risk
of convicting the accused on the basis of uncorroborated evidence of
a single witness. The single witness should therefore be credible in
all respects.
What
matters at the end of the day is the quality rather than the quantity
of evidence led.
In
casu
the court a
quo
did not critically analyse this aspect of a single witness. That was
a misdirection, though it was not fatal to the proceedings.
It
accepted the state's evidence and rejected the defence's version.
The
appellant's conduct on the date in question portrays a guilty mind.
He gave various versions to what had caused the fractures on the
complaint's arms.
To
the police he mentioned that the complainant had been robbed; on one
occasion he told the court a
quo
that the complainant jumped over high fences and that could have led
to his fracture. Yet on the other hand he wanted to convince the
court that complainant had fallen into a pit.
The
complainant gave a coherent unimpeached chronicle of what happened;
he wanted a supa and went to appellant's property. Appellant might
have retired and when he heard the shaking of the gate he woke up and
found the complainant at his premises, he hit him thinking that he
was a thief and intruder.
When
Lovemore Nyadongo arrived and dispelled the fear of complainant being
a thief the appellant decided to create a way of trying to find some
other causes of injury other than his assault.
Lovemore
Nyadongo found complainant injured already well before complainant
fell into the pit, which event occurred after the arrival of
Nyadongo.
Throughout
the night the appellant stated he saw the complainant first and
tracked his movement whilst in appellant's yard. However, he could
not tell the court exactly at what point complainant sustained the
injuries.
Although
the learned trial magistrate failed to pinpoint the cautious approach
in single witnesses cases, he nevertheless properly in my view did an
appropriate evaluation of the state witnesses and arrived at an
appropriate decision.
I
am convinced the state managed to prove its case beyond reasonable
doubt and the conviction of the appellant by the court a
quo
is unassailable.
The
appeal against conviction has no merit.
On
the aspect of sentence the appellant submitted that the sentence is
disproportionate to the gravity of the offence.
It
is true that the court a
quo
passionately sensationalised its feeling about the helplessness
of the
complainant in court.
The
fundamental purpose in sentencing first offenders should be
rehabilitation and reform. Imprisonment should be the last resort.
A
sentencing court should first explore non-custodial forms of sentence
before imposing imprisonment which is a rigorous punishment that
should be resorted to only in the absence of any other suitable forms
of sentence.
However,
a fine will trivialise the otherwise serious offence committed by the
appellant. Accordingly the appeal against custodial sentence will
succeed. The sentence of the court a
quo
is set aside and substituted by the following:
12
months imprisonment of which 3 months imprisonment is suspended for 2
years on condition accused does not during that period commit any
offence involving violence. The remaining 9 months imprisonment is
wholly suspended on condition accused performs 315 hours community
service at Marange High School.
The
record is remitted to the trial magistrate to liaise with the defence
counsel on the date of commencement of community service and other
related issues.
MWAYERA
J agrees_____________________
Nyamwanza
& Associates,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
1.
At page 38 of the record of proceedings
2.
Page 39
3.
Page 42
4.
See also S
v Tsvangirai & Ors
2003
(2) ZLR 88 (H)
5.
S v Zvimbovora 1992 (1) ZLR 41 (S); S v Mutandi 1996 (1) ZLR 367 (H);
R v Mokoena 1956 (3) SA 81 (A); S v Magodo 2017 (1) ZLR 294
6.
See S v Gumbo 1995 (1) ZLR 163
7.
S v Bonda HH67/2010; S v Magaya HB12/03
