Before: GOWORA JA
In
Chambers in terms of s 121(2)(a) of the Criminal Procedure and Evidence
Act[Cap. 9.07].
This is an appeal against a judgment of the High Court which was issued on 5
June 2012 refusing bail pending appeal in respect of the appellant. The
appellant prays that the judgment of the court a quo be set aside and be
substituted with an order admitting him to bail.
The facts of this case are these. The appellant was arraigned before the
Regional Magistrate on one count of contravening s 113 of the Criminal Law
(Codification and Reform) Act, [Cap. 9:23]. The allegations against him
were that he had stolen a motor vehicle belonging to the Attorney General's
Office and which had been assigned to one of the officers within the
department. The appellant was convicted after a lengthy trial and sentenced to
10 years imprisonment with 2 years of the sentence suspended on condition he
paid restitution to the complainant in the sum of USD42 000. The appellant was
aggrieved by the conviction and has appealed to the High Court against his
conviction. The appeal is still to be determined. Subsequent to noting the
appeal he then launched an application for bail which is the subject of this
appeal.
The grounds of appeal are as follows:
- The learned judge in the court a quo seriously
misdirected herself by holding that there was only one valid ground of
appeal to the High Court yet the grounds are clear and specific as to what
exactly is being attacked in the learned magistrate's judgment and/or
findings in conformity with the direction given in the case of S v
Ncube 1990 (2) ZLR 303 (S).
AD
PROSPECTS OF SUCCESS
- The learned judge erred in holding that the trial
magistrate had decided the matter on circumstantial evidence and the
credibility of witnesses. This was a matter which was decided purely on
circumstantial evidence as was indicated by the trial magistrate in his
judgment.
- The learned judge seriously misdirected herself in
holding that the trial magistrate had properly found that the only
reasonable inference to be derived from the circumstantial evidence was
that it was the appellant who stole the motor vehicle in question. The
learned judge overlooked and/or omitted to consider the real possibilities
which could reasonably be drawn from the circumstantial evidence thereby
misdirecting herself in finding that there were no prospects of success on
appeal against conviction.
- The learned judge erred in failing to address the
obvious inconsistencies, contradictions and confusion in the evidence of
the State witnesses especially Rejoice Muroyi more particularly in so far
as the issue of keys to the safe was concerned.
- The learned judge misdirected herself by failing to
properly analyse and commenting on the evidence led before the learned
magistrate and giving meaningful reasons as to why she made a finding that
the trial magistrate's findings and the subsequent conviction were proper
hence there were no prospects of success.
- The learned judge erred in holding that the appellant
contended that the trial magistrate had erred in convicting him on circumstantial
evidence yet the first ground of appeal is specific that the appellant
contends that the trial magistrate seriously misdirected itself in
convicting the appellant yet the circumstantial evidence adduced on behalf
of the state did not lead to one conclusion that the appellant committed
the offence but to different possibilities. The finding therefore does not
have any basis.
- The learned judge seriously misdirected herself by
erroneously assuming that the appellant's contention was that it was an
irregularity to convict someone on the basis of circumstantial evidence
hence basing on that erroneous belief she held the conviction was proper.
This was never raised either in the grounds of appeal or the application
for bail pending appeal itself. The learned judge ultimately erred in
dismissing the appellant's application for bail as a result of that
erroneous belief.
- The learned judge in the court a quo erred by
concluding that the appellant's guilt had been proved beyond reasonable
doubt and thereby erroneously and without justification coming to the
conclusion that there are no prospects of success on appeal against
conviction thereby wrongly denying the appellant bail pending the
determination of his appeal.
GENERAL The learned judge in the court a quo erred by
denying the Appellant bail pending appeal in circumstances where he had
established on a balance of probabilities that the interests of justice would
not be prejudiced by his admission to bail pending appeal.
The granting of bail involves an
exercise of discretion by the court of first instance. It is trite that
this court would only interfere with the decision of the learned Judge in the
court a quo if she committed an irregularity or exercised her discretion
so unreasonably or improperly as to vitiate her decision. The record of
proceedings must show that an error has been made in the exercise of
discretion: either that the court acted on a wrong principle, allowed
extraneous or irrelevant considerations to affect its decision or made mistakes
of fact or failed to take into consideration relevant matters in the
determination of the question before it. In Ncube v The State SC 126/01
SANDURA JA enunciated the principles mentioned above thus:
“Having said that, I hasten to add
that the power of this Court to interfere with the decision of the High Court
is rather limited. This point was made in the State v Chikumbirike 1986
(2) ZLR 145 at 146E-F where this Court said:
“The next
matter to be decided is whether this Court in hearing the appeal should treat
it as an appeal in the wide sense, that is to say, that it is to be decided as
if it were a hearing de novo. Once again that matter has been decided in the
case of The State v Mahommed 1977 (2) SA 531 (AD) at 541 B-C where
TROLLIP JA said that in an appeal of this nature the Court of appeal will only
interfere if the court a quo committed an irregularity or misdirection
or exercised its discretion so unreasonably or improperly as to vitiate its
discretion.”
The same point was subsequently made
by this Court in Aitken's case (supra) at 252E-F as
follows:
“While the Judge President, in
considering the appeal was at liberty to substitute his discretion for that of
the magistrate on the facts placed before the latter, the present appeal is one
in the narrow sense. The powers of this Court are, therefore, largely
limited. In the absence of an irregularity or misdirection this Court has
to be persuaded that the manner in which the Judge President exercised his
discretion was so unreasonable as to vitiate the decision reached”. See State
v Barber 1979 (4) SA 218 (D) at 220E-G; State v Chikumbirike 1986
(2) ZLR 145 (S) 146F-G'.
The principle is therefore well
established. It follows that in the present appeal, for the decision of the
learned judge to be reversed, it must be shown that the learned judge committed
an irregularity or misdirection, or that the manner in which he exercised his
discretion was so unreasonable as to vitiate the decision made.”
Before the High Court and this Court
it was contended on behalf of the state that the grounds of appeal against
conviction were, apart from the first ground, general and therefore were mere
amplifications of the first ground. The learned judge in the court a quo
was persuaded by the argument proffered on behalf of the state and consequently
only had recourse to the first ground in determining the application before
her.
This Court is enjoined to decide
whether or not the court a quo misdirected itself, or whether it
exercised its discretion unreasonably in denying the appellant bail pending
appeal. The learned judge in the court a quo found that the appellant
had only filed one ground of appeal and that grounds 7 to 8 were mere
amplification of the first ground of appeal. The nub of the appellant's complaint
is focused on this finding by the learned judge.
The procedure for the noting of an
appeal against conviction and sentence in the Magistrates Court is provided for
in the Appellate Division (Magistrates Court)(Criminal Appeals) Rules, S.I. 504
of 1979, specifically r 22 (1), which provides in relevant part:
“The appellant shall, within ten
days of the passing of sentence, or, where a request has been made in terms of
subrule (1) of rule 3 of Order IV of the Magistrates Courts (Criminal) Rules,
1966, within five days of receipt of the judgment or statement referred to in
that rule, whichever is the later, note his appeal by lodging with the clerk of
court a notice in duplicate setting out clearly and specifically the grounds of
the appeal and giving for the purpose of any service the address of his legal
representative or, if a legal practitioner is yet to be appointed, the address
of the appellant.”
The rule has been interpreted in
several judgments emanating from this Court. In S v Jack 1990 (2) ZLR
167 MCNALLY JA spelt out succinctly the requirements of the rule in a notice of
appeal thus:[1]
“The appellant was unrepresented at
his trial, but on 30 August 1988 a 'notice of appeal' was lodged by his legal
practitioner, Mr Mhlanga. The notice of appeal in regard to conviction was
fatally defective. As against conviction on each count it contained the following
single ground of appeal:
“The
magistrate erred in finding the accused guilty despite the fact that the charge
was not substantiated”.
This amounts to saying he was not
guilty because he was not guilty. It is meaningless. A magistrate who receives
such a notice of appeal cannot know what to say in response to it. The notice
is not a notice of appeal (at any rate in regard to conviction) because it does
not comply with the Rules. Rule 22, contained in SI 504 of 1979, requires a
notice “setting out clearly and specifically the grounds of the appeal.”
It is necessary to draw legal
practitioners' attention again to the provisions of this Rule and to the
judgment of BEADLE J (as he then was), in R v Emerson & Ors 1957 R
& N 743; 1958 (1) SA 442 (SR). See also S v McNAB S-159-86 and S
v Marenga S-32-88.
“It seems to be widely believed that
when a client who has been convicted and sentenced belatedly instructs a legal
practitioner, all that is necessary is that a notice of appeal be lodged
setting out the most cursory and meaningless grounds with (sometimes) the
promise that proper grounds will be substituted when the record is available.
This is not so. A notice of appeal without meaningful grounds is not a notice
of appeal. Since it is a nullity, it cannot later be amended.”
The learned judge of appeal had
occasion again to discuss the requirements of rule 22 in S v Ncube 1990
(2) ZLR 303, where at p 304C-E he stated:
“The first of these grounds is the
only appeal against conviction. I need only quote one passage from R v
Emerson, supra, at 748D-E to show that such a ground is
unacceptable. BEADLE J with the concurrence of the Full Bench of the High Court
of Southern Rhodesia, said this:
'I do not
consider that such general grounds of appeal as “the conviction is against the
weight of evidence” or “the evidence does not support the conviction” or “the
conviction is wrong in law” are a compliance with the rule. It follows that
where the only ground of appeal given in the notice is a vague one of this
description the notice of appeal must be considered to be bad. The effect would
be the same as if no notice of appeal had been given at all, and the Magistrate
concerned would be perfectly within his rights in refusing to give his reasons
for judgment on receipt of such a vague notice'.
The notice of appeal against
conviction was therefore a nullity.”
It seems that the rider contained in
those authorities is still not being heeded by those who practice law in this
jurisdiction. A notice of appeal must contain grounds that are clear and
specific. If a ground of appeal is general then it cannot be a valid ground of
appeal. The learned judge in the court a quo did not state that grounds
two to eight were invalid, instead she held that they were amplifications of
the first ground. I agree. An examination of each of the grounds illustrates
the failure on the part of the appellant's legal practitioner to comply with
the rule.
The grounds of appeal filed in the
High Court and which the learned judge had to consider in the application for
bail were the following:
1. The court a quo seriously misdirected itself in convicting the appellant
yet the circumstantial evidence adduced on behalf of the state did not lead to
one conclusion that the appellant committed the offence but to different
possibilities.
2. The learned magistrate erred in simply ruling out real possibilities as
fanciful and far-fetched and making too many assumptions which were not
supported by the evidence in any way.
3. The learned magistrate seriously misdirected himself in simply dismissing as
irrelevant vital evidence that when the motor vehicle was stolen the appellant
was within the premises hence he could not have stolen the motor vehicle in
question and further that at one of the meetings it had been discussed that the
motor vehicle in question had been seen somewhere.
4. The court a quo clearly failed to analyse the evidence before it but
simply relied on unsubstantiated assumptions which were not supported by the
facts in any way.
5. The learned magistrate erred in placing too much reliance on the fact that the
appellant was the one in charge of the keys to the motor vehicles and hence he
ought to be held responsible for the stolen motor vehicle yet the evidence did
not prove the guilty (sic) of the appellant as required by law.
6. The court a quo erred in simply accepting the evidence of the
state witnesses and just dismissing the appellant's testimony.
7. The court a quo erred in law and in fact by failing to properly apply
its mind to the requirements that have to be met when relying on circumstantial
evidence. If it had done so it ought to have acquitted the appellant.
8. The court a quo clearly misdirected itself by dismissing legitimate
evidence and giving undue importance on circumstances which were not
irreconcilable with innocence.
I find merit in the submission made
by Mr Nyazema that the fact that an appellant has raised numerous
grounds of appeal does not entail that the appellant has prospects of success
on appeal. What is trite is that a ground of appeal must be clear and specific.
It should not be vague.
The crisp issue, notwithstanding the
number of grounds of appeal, is whether the learned judge in the court a quo
applied the correct legal principle applicable to applications for bail pending
appeal. When one has regard to the judgment of the learned magistrate it is
clear that the basis for convicting the appellant was circumstantial evidence.
The first ground of appeal to the High Court attacks the reasoning of the
magistrate in arriving at his decision based on the circumstantial evidence. It
also raises the possibility that the circumstantial evidence did not
conclusively point to the guilt of the appellant but to different
possibilities. The second ground of appeal, in raising as it does, the alleged
error on the part of the magistrate in discounting real possibilities as being
fanciful and far-fetched is clearly an amplification of the first
ground.
The third and fourth grounds are
linked with the first and second grounds and relate to the nature of the
evidence presented to the trial and the alleged failure on the part of the
magistrate to analyse the evidence and his reliance on alleged wrong
assumptions. The two grounds do not mention the specific evidence that the
magistrate failed to analyse, but make reference in general terms to evidence
and unsubstantiated assumptions, the latter of which is not specified. The
sixth to eighth grounds again deal with issues relating to the circumstantial
evidence and the acceptance of such evidence by the trial court and his
dismissal of the appellant's evidence out of hand.
It seems to me that the learned
judge erred in treating the fifth ground as an amplification of the first
ground in that it raised a specific and clear ground of appeal. It seems
however, that despite its finding that there was only one ground the learned
judge did not strike out the other grounds but found instead that they were an
amplification of the first ground. She said that the first ground could be
substantiated.
The court then dealt with the
application on the basis of the first ground of appeal. The court was alive to
the fact that the trial court had convicted the appellant based on
circumstantial evidence. It is trite that where a judicial officer convicts an
offender on the basis of circumstantial evidence there must be no other
existing circumstances which would weaken or destroy the inference sought to be
drawn. The inference drawn must be the only reasonable inference that can be
drawn from the circumstances. This principle was enunciated in R v Bloom
1939 AD 188 by WATERMEYER JA in the following terms:[2]
“In reasoning by inferences there
are two cardinal rules of logic which cannot be ignored:
(1) The inference sought to be drawn must be consistent with all the proved facts.
If it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought to be drawn
is correct.”
I must examine what the learned
judge said in her judgment in order to determine whether she committed any
irregularity or misdirection, or exercised her discretion in a manner vitiating
her decision. In her judgment, the learned judge stated:
“The trial court had the benefit of
seeing, hearing and assessing the witnesses credibility and made a finding that
those state witnesses were worthy believing thus credible. A perusal of the
record shows the analysis of evidence by the court and one cannot help but
agree with the court's assertion. It is not an illegality to convict on
circumstantial evidence. What is important is that from the given evidence the only
reasonable inference to be drawn is that which the court a quo came up
with. In the present case the court a quo made a finding that the only
reasonable inference was that it was the applicant who stole the motor vehicle
in question. The inference drawn must or ought to be the only reasonable
inference that can be drawn from the circumstances. The judgment by the court a
quo spells out how the trial court basing on credibility of witnesses came
up with the conclusion that given the evidence on hand the only reasonable
inference to be drawn was that the applicant stole the motor vehicle in
question.”
It is clear that the learned judge
was alive to the principles applicable to a court which convicts an accused
based on circumstantial evidence. Even though the fifth ground was held to an
amplification of the first ground, I find that in the application of the
principles relating to circumstantial evidence, the learned judge would have
had regard to all the evidence that was before the magistrate in her assessment
as to the sufficiency of such evidence and the inferences to be drawn. There is
no suggestion that the judge applied the principle incorrectly. There is also
no suggestion that there was an irregularity or that the judge exercised her
discretion in a manner that vitiated her decision.
It seems to me that the appellant
has filed grounds of appeal before this Court that are more precise and clearer
in format than those prepared against the conviction in the Magistrate's court.
I find no misdirection on the part of the learned judge who dismissed the
application for bail pending appeal.
The appeal
is devoid of merit and it is dismissed.
Maeresa & Partners, appellant's legal practitioners
Attorney-General's Office, respondent's legal practitioners
[1]At p167C-G
[2]At
202 - 203
