Criminal
Appeal (Reasons for Judgment)
MUZENDA
J:
On
18 October 2019 the appellant was convicted for stock theft as
defined in section 114(2)(a) of the Criminal Law (Codification and
Reform) Act [Chapter
9:23]
and was sentenced to 9 years imprisonment.
He
appealed against conviction and set out the grounds as follows -
“GROUNDS
OF APPEAL
1.
The trial court erred by placing a duty on the appellant to prove his
innocence by sufficing that the circumstantial evidence before the
court proved the appellant guilty beyond a reasonable doubt thereby
convicting the appellant.
2.
The trial court erred in concluding that the totality of the evidence
could ensure a conviction without hearing evidence from a material
state witness Zvikomborero Ndedzo.
3.
The trial court erred in convicting the appellant whilst the identity
of the perpetrators had not been established by the state witnesses
who bought the carcass.
4.
The trial court erred in linking the pliers found at the crime to the
appellant when there was no evidence that the appellant was ever in
possession or in control of the pliers at the material time or at any
time.
5.
The trail court erred by pacing value on hearsay evidence from one
Antonio Mutoniya that the appellant was communicating with
Zvikomborero Ndedzo. No evidence was led to show that indeed the
appellant was communicating with Ndedzo or the nature of such
communication if it existed.
6.
The trial court misdirected itself in concluding that the witness
Antonio Mutoniya made a police report and thus concluding that he was
a credible state witness when in fact he never gave evidence that he
made the police report.
7.
The trial court erred by failing to treat the evidence of Anonio
Mutoniya with caution as he was a potential accomplice taking into
account that he had not had the beast cleared by the police, he
bought the meat at night and that he had no record of the persons who
sold the meat to him.
8.
The trial court erred by dismissing the appellant's alibi even
though the state had not managed to disprove or refute it.
9.
The trial court erred by failing to give due weight to the fact that
indications by the police were forced, biased and also full of
fabrications and that they were also allegedly made after the police
had visited the scene and that it is at variance with the
complainant's evidence.”
The
appellant prayed that the conviction and sentence imposed by the
court a
quo
be set aside and that he be found not guilty and acquitted.
FACTS
The
State alleged that on 27 April 2019, and at Plot No.84, St Faith,
Rusape, Malven Muchedzi and the appellant, both and each or one or
the other of them unlawfully took a black cow owned by Tafara
Chitsike intending to deprive him permanently.
On
the same date appellant contacted Zvikomborero Ndedzo on his mobile
phone informing him that he was selling a cow which had suffered a
broken leg.
Zvikomborero
Ndedzo advised Peter Antonio Mutoniya through his mobile phone who
agreed to buy the cow.
On
the same day at around 2000 hours, the appellant and his accomplice
proceeded to the complainant's cattle pen where appellant
co-accused opened the kraal, entered and drove out a black cow whilst
the appellant remained at the entrance.
The
appellant then closed the kraal and the two then drove the cow to
Mutseriwa's farm. Upon arrival at the farm, appellant's
co-accused cut a barbed wire which surrounds the farm with a pair of
pliers to gain entry into the farm. The two tied the cow to a tree
and slaughtered it, skinned it and hid the hide between some rocks
and carried the meat to a roadside leaving the pliers at the scene.
Zvikomborero
Ndedzo and Peter Antonio Mutoniya later arrived at the scene and met
the two accused.
Appellant
and his co-accused charged $700-00 for the meat and loaded it into
the motor vehicle; they were paid $400-00 on 28 April 2019. Peter
Antonio Mutoniya deposited $60-00 into the appellant's ecocash
account.
On
28 April 2019 in the morning complainant discovered that his cow was
missing. He followed spoor which led him to the scene and recovered a
plier. He later met Ananias Muchedzi who identified the pliers as
belonging to him.
The
total value is $500-00.
The
appellant in his defence outline denied stealing complainant's cow.
On 28 April 2019 he was never near complainant's kraal, and was
actually in Harare buying paprika.
He
denied knowing Peter Antonio Mutoniya and the $60-00 he was paid
through ecocash from Zvikomborero Ndedzo was a payment for his debt,
the extra $10-00 was for charges and a pint of beer for gratis.
It
is important to summarise the evidence that was relied by trial court
to convict the appellant.
Complainant
Tafara Chitsike's vital evidence is to the effect that when he
discovered that his cow was missing from the kraal, he detected a
spoor composed of human feet trail and hooves from his kraal, he got
to where the fencing wire had been cut and discovered the hide, he
also picked the pliers. His neighbours came including Ananias
Muchedzi who identified the pliers as belonging to him.
Ananias
Muchedzi is appellant's father. He had been missing the pliers.
Before
complainant proceeded to the police Liberty arrived at complainant's
homestead saying he could not find his axe. Ananias Muchedzi informed
complainant that he suspected Malven and appellant over the
complainant's missing black beast.
Complainant
told the court a
quo
that
appellant admitted at the police stealing complainant's cow and
also promised complainant that he could give him the money he
received from the buyer.
Complainant
under cross-examination added that when the appellant was at
complainant's home, he told complainant's wife how they have
stolen the cow. Both appellant and Malven asked for forgiveness.
Peter
Antonio Mutoniya's critical evidence is to the effect that he did
not know the appellant but on the date in question, when he was with
Zvikomborero where he loaded the meat appellant and Malvern
Muchedzi's names were identified as the owners of the meat.
He
paid a down payment of $400-00 and retained $300-00 to enable him to
get an invoices from the owner of the meat.
He
deposited $60 through ecocash through appellant's mobile phone as
part payment of the balance of $300-00.
He
was then told that appellant and Malven were wanted by the police.
The
police detail, Jephter Zivedza told the trial court that at first
appellant denied the theft but later admitted and promised
complainant that he will restitute him.
He
also told the court that it was the appellant who led police to where
the hide was concealed.
During
cross examination by defence counsel, the police detail reiterated
that at first both appellant and Malven admitted stealing the cow and
vowed to the complainant that they will compensate him.
The
grounds of appeal are long, repetitive and meandering what we
perceive at the centre of the appeal against conviction is that the
court a
quo
should not have convicted the appellant.
The
appellant submitted that he had a defence of an alibi and stated that
on the day in question he had sojourned to Harare to buy paprika and
returned around 9:00pm.
During
hearing of the appeal, appellant's counsel admitted that the
appellant raised the alibi defence belatedly on the day of trial and
during cross-examination of the appellant.
The
defence outline also shows that the appellant did not raise it
specifically though he alluded to the paprika business.
A
defence of an alibi must be raised by an accused right from the
outset, at the time an accused is informed of his or her own charges,
he or she should immediately inform the police about his or her
whereabouts at the time the alleged crime was committed.
This
information would assist the police to verify the alibi through
interviewing witnesses. Invariably if the alibi is confirmed police
will not logically insist with prosecuting the accused; and accused
must not wait for the day in court and mischievously introduce the
defence.
The
court may require the accused to call the witnesses to confirm such
an alibi it will not be shifting an onus, it will be expecting an
accused to authenticate his side of the story moreso where the state
would have proved evidence which places the accused at the scene of
the crime.
The
appellant in this case did not tell the police about the alibi he
eluded to it during trial. The court a
quo
did not err nor misdirect itself in dismissing appellants alibi.
The
evidence of the pliers, the mentioning of the names to the buyer of
the meat, the indications and recovery of the hide, the promise to
pay compensation to the complainant, the payment of $60-00 ecocash to
the appellant, cumulatively puts credence to the inference reached by
the court a quo.
A
close trail of the events deduced from the evidence led by the state
established that appellant and his accomplice stole the plier and
collected an axe, used the implements in clearing the fence and
slaughtering the beast. They sold the meat to Antonio Mutoniya who
paid $400-00 and later on paid $60-00 to appellant for transport to
go and collect the balance leaving an invoice to the buyer.
The
evaluation of the evidence by the court in its judgement calls for no
interference, its well-reasoned and the criticism by the appellant is
unfounded and has no merit.
The
appellant failed to prove allegations of compulsion where he made
indications as well admitting to the complainant that he stole the
cow.
All
the nine supposed grounds of appeal have no merit and the appeal
against conviction is dismissed.
MWAYERA
J
agrees_____________________
Chiwanza
& Partners,
appellant's legal practitioners
National
Prosecuting Authority,
for the respondent
