THE FACTS
The deceased, Ronald Wairosi, was aged nine (9) at the time
of his death. He was the elder of the appellant's two sons with his first wife.
The appellant and the children's mother had divorced when the children were
very young. The deceased and his younger brother, Tawanda, resided with their
grandmother, the appellant's mother, in Chivakanenyama area in Hurungwe. The
appellant lived in Banket with his new wife.
The only eye witness to the murder was Tawanda. He gave
evidence in camera as the court found that he was a vulnerable witness.
When the murder occurred he was aged seven (7). He gave
evidence two years later at the age of nine (9). His evidence was to the following effect.
On 11 June 2007, the appellant arrived at his grandmother's
homestead and informed his mother that he wanted to take the boys to Karoi to
obtain birth certificates for them. The following day, despite his
grandmother's protestations, the appellant left with the two boys. He took them
to Karoi. In Karoi, they proceeded to Madiro Supermarket where they boarded a
single cab truck with three male occupants.
The driver was alone in the front and the other two were seated at the
back in the cab. The three men were dressed in black attire. The appellant and
the two boys sat in the back of the pick-up truck.
From Karoi, the vehicle travelled a considerable distance
along Chiumbarukwe Road. The driver stopped the vehicle by the roadside in a
bushy area within the farming area. The appellant and the two children
disembarked. The occupants of the vehicle remained in the vehicle which
remained stationary. The appellant and the children walked further into the
bush. Once in the bush, the appellant picked up a stone and struck Ronald.
Tawanda ran off into the bush where he spent the night. He was found wandering
in the grazing area of Sandara Farm the following day by Munyaradzi Kondo and
taken to the police where a report was made. On 16 June 2007, Japhet Mauzeni, a
security guard with Sandara Farm, discovered the remains of the deceased in the
grazing area whilst on patrol. He made a report to the police who attended the
scene and recovered the body.
The appellant's mother gave evidence which corroborated
that of Tawanda in relation to the appellant's visit to her homestead. She
confirmed that he had taken the two boys away alleging that he wanted to obtain
birth certificates for them in Karoi. She said that he had returned to the
homestead on 15 June 2007 with one child instead of two. She asked him where
the other child was and he narrated the events of the fateful day. The story he
narrated to her was as follows:
“He then said that they were fighting him he then managed
to grab Tawanda threw him away and the other remained. He then said that when
they had remained he managed to grab an iron bar and he struck one of those two
guys on the legs and the driver came out with a knife. He said that he had fled
with Tawanda. He then said that Ronald remained in the vehicle of the
murderers. I then asked as to whether Ronald had been tied since he could not
escape when the others did and he said that he did not check on that. When I
asked him about Ronald he said that he could not check on that because he was
also being fought at. After he said that I then started crying. When he told me
that the other child had remained in the vehicle of these murderers I started
crying telling him that I had advised him earlier on to leave the children
because there was going to be a mobile registration and he could not take my
advice.”
The mother also told the court that the appellant did not
appear to have any injuries and that she only learnt of the death of Ronald
when she went to Karoi Police Station to have a statement recorded by the
police. According to the witness, the appellant had come back to her homestead
on the Sunday with his wife. He told her that the deceased was dead and that he
would go to the police station to find out if the body had been recovered. His
mother told the court that he had lied to her about having been attacked and
that she found out the truth when she went to the police station.
The telling fact is that the appellant did not challenge
her evidence on what transpired after he returned to her homestead with one
child instead of two.
Detective Sergeant Katsvere gave evidence to the effect
that the deceased had been found on 18 June 2007. He had proceeded to the scene
where the deceased was found lying on the ground. One of his ears was missing
and beside the body was a large stone which had hair.
When the matter came to trial the stone which was produced
no longer had any hair.
After recovery, the body of the deceased was taken for examination
to a pathologist who prepared a report. The postmortem report revealed that the
deceased sustained the following injuries:-
(i) Fractured parietal bone measuring 3cm.
(ii) Fractured temporal bone measuring 4cm.
(iii) Partially
amputated (sic) right ear.
The pathologist concluded that the deceased died as a
result of head injuries.
At the trial, the appellant submitted to the court a
lengthy and detailed Defence Outline. The evidence of the appellant was to a
large extent consistent with his Defence Outline. There were, however, major
discrepancies between what was contained in his Defence Outline and his
evidence.
In his Defence Outline, he stated that he picked up his two
sons from their grandmother intending to take them to Ceres Farm where he had
recently obtained employment. He stated that by the time he and the boys
arrived in Karoi the last bus for Ceres had gone and he decided to hitch hike
to the farm. At about 1600 hours, a truck pulled up at the supermarket where he
and the children were waiting. The driver of the vehicle indicated that he was
going in that direction and the appellant and the children climbed in. Apart from the driver there were two other
gentlemen seated at the back. The appellant and his children got into the back.
In his evidence he gave a completely different version.
He said that he had gone to Karoi with the boys to obtain
birth certificates. He had gone to the registry office where he was informed
that the mother was required and he had been advised to bring her the following
day. He said the bus to Ceres Farm had left and he decided to go and board a
lift.
In the Defence Outline, he stated that after having
travelled for a distance, the driver stopped the vehicle near Mureshi River.
One of the men at the back pulled out a gun and ordered Tawanda to disembark
from the vehicle. The appellant also tried to disembark and was threatened.
Ronald was being held by the other man, whose identity was later revealed as
Mazheke. After proceeding for another 200 metres, the driver stopped the
vehicle. Mazheke struck the deceased twice on the head with an iron bar. The
gunman, whom the appellant later found out was called Masunda was pointing the
gun at the appellant. After being struck,
the deceased collapsed. Mazheke covered him with a blanket. The vehicle took
off. At Ranrock Farm, the driver stopped the vehicle and ordered the appellant
to disembark. He was threatened with death and ordered not to make any noise.
The appellant made his way to Ceres Farm where he related his ordeal to his
sister and her husband.
In his evidence, he did not say that Tawanda was threatened
with a gun. Instead, he said that he is the one who was threatened when he
protested about Tawanda being made to disembark from the vehicle; nor did he
mention the distance that the vehicle travelled before Ronald was attacked.
According to the Defence Outline, and in his evidence,
early the following morning, the appellant proceeded to Karoi Police Station
where he made a report. The following day he received information that his
younger son, Tawanda, had been found wandering in the bush. After picking him
up he went to Chivakenyama where his mother stayed to advise her of the events.
On his way back he passed through Magunje Police Station where he was informed
that Ronald had been found dead at Sandara Farm. Immediately thereafter, a truck containing
the body of the deceased arrived at the police station. The appellant was
arrested and detained.
He alleged that when interrogated he denied any involvement
in the death of the deceased. He was subjected to torture for a period of three
days, and, as a result, he confessed to the crime. A warned and cautioned
statement was recorded from him by the police.
Tawanda's evidence that the appellant took him and his brother
away from home against the wishes of his grandmother tallies with that of the
appellant and the grandmother. He was emphatic that the appellant did not take
his brother and himself to the births and deaths registry for the purpose of
obtaining birth certificates. This also accords with what the appellant said in
his Defence Outline, when he said he had picked up the boys to take them to
Ceres Farm where he had obtained employment.
The evidence of the two is similar as regards the motor
vehicle they boarded and the occupants, including where in the vehicle the
appellant and his sons were seated. The motor vehicle stopped to allow the
appellant and his children to disembark, as suggested by Tawanda, or to force
Tawanda out leaving the appellant and his older son in the vehicle to
facilitate the murder of the deceased by the occupants of the motor vehicle.
The learned trial judge was not satisfied that the evidence
given by Tawanda, in relation to the murder, was reliable.
He was of the view that certain aspects of the evidence
contained inconsistencies which could not be relied on by the court in the
absence of corroboration of that evidence from other sources. He expressed his
doubts as follows:
“…,. He seems to us a child bent on telling the truth even
if it goes against the State case and his father. The police must have sought
to produce a coherent story but Tawanda refused to perjure himself but told a
story which incriminates his own father in a manner different from that
narrated in the State's summary of his evidence. If he cannot take the
suggestion of the police he cannot therefore be giving evidence suggested to
him by anyone. His story is not a product of fantasy or imagination. It is
corroborated by common cause evidence. Ronald's head had two wounds and he died
of head injuries. He died in the bush Tawanda says their father walked them
into. Tawanda himself was found in that bush. A stone was found near the
deceased's body. Recent case law has established that children do not have
fantasies about things they do not know. They fantasise on things they
encounter on a daily basis. Murder must surely be a strange concept in the mind
of a seven year old. He cannot conjure up images of a murder and tell a story
which accurately explains the death of his own brother which is generally
supported, by witnesses whose evidence was admitted by the defence.”
And later on:
“While I agree with the majority that Tawanda did not give
evidence suggested to him or out of fantasies, his evidence remains unsatisfactory.
I would therefore agree with Mr Nkomo, but for different reasons, that his
evidence should be treated with caution.”
After a careful analysis of the evidence given by Tawanda
the learned trial judge remained of the view that it was not safe to rely on
his evidence.
In terms of section 10(2) of the High Court Act [Chapter
7:06] any question of fact arising out a criminal trial shall be decided by the
majority of the members of the court.
The learned assessors, however, disagreed with the judge
and found him a credible witness.
In view of the conclusion by the learned assessors sitting
with the judge, to the effect that Tawanda's evidence could be relied on, the
appellant was convicted of murder with actual intent to kill.
THE
SUFFICIENCY OF THE EVIDENCE ADDUCED ON BEHALF OF THE STATE
It was contended on behalf of the appellant that given the
age of the only eyewitness, Tawanda, the court had misdirected itself in
relying on his testimony in the absence of independent evidence establishing the
requisite mens rea on the part of the appellant. Counsel argued, further, that
the testimony of a child requires that it be treated with caution, and, further
to that, that it is settled that the evidence of a child requires
corroboration.
The law with regard to the evidence of juveniles was
examined in detail by EBRAHIM JA in S v Sibanda 1994 (1) ZLR 394….,. In
relation to the cautionary rule, the learned Judge of Appeal stated:
“Returning to the issue of the cautionary rule raised in
the first ground of appeal, it is well established in such cases as R v Judson
1965 RLR 501, S v Mupfudza 1982 (1) ZLR 271 (S), S v Santos SC138-85 (unreported),
and S v Ponder 1989 (1) ZLR 235 (S), that it is advisable to require
corroboration of the testimony of young children because their youth indicates
immaturity of mind which may cause them to give ill-considered or misleading
evidence. See the comments of YOUNG J in R v J 1958 (3) SA 699 (SR) at 702.
However, our law, unlike English law, does not require corroboration. (See
WATERMEYER CJ in R v W 1949 (3) SA 772 (A) at 781 and MCNALLY JA in S v Santos
supra at 7-8). In W's, case the learned CHIEF JUSTICE, after remarking on the
absence of a requirement for corroboration, added:
'But this is only the position where the court is fully
appreciative of the risks involved and where the merits of the complainant and
the demerits of the accused as witnesses are beyond question.'
I take this to be the source of the cautionary rule.
What precisely are the risks involved in the acceptance of
the evidence of children?
The liberal rules governing the acceptance of children's
evidence in our jurisdiction impose a duty on the court to be cognisant of
potential objections to the evidence of children which may, or may not be valid
according to the facts and circumstances of each case. In their useful book,
the Evidence of Children (Blackstone Press) at p 238, SPENCER and FLIN list six
of the main objections to relying on children's evidence. These are:
(a) Children's memories are unreliable;
(b) Children are egocentric;
(c) Children are highly suggestible;
(d) Children have difficulty distinguishing fact from
fantasy;
(e) Children make false allegations, particularly of sexual
assault;
(f) Children do not understand the duty to tell the
truth.'”
After a careful analysis of each of the listed objections
the learned JUDGE concluded…,:
“I have adopted this method of analysing the evidence
precisely because I think a new and more specific approach to cases involving
children is called for. It is not that there is anything intrinsically wrong
with the present approach of merely seeking corroboration of the evidence of a
child. No-one who reflects on the matter would doubt that this, in most cases,
is the correct approach. But in approaching such cases with a single-minded eye
towards seeking corroboration, the courts lose sight of the reasons for seeking
it. This danger was noted by BARON ACJ in S v Mupfudza supra at 273E:
'The court looks for corroboration for the evidence of a suspect
witness. But, perhaps precisely because of the search for corroboration, trial
courts frequently forget that the court must decide whether the witness is
credible…,. If (he is) not, the matter is at an end, and the question of
corroboration of, or support for, his testimony does not arise…,.'
A rational decision as to the credibility of a witness
(especially a child witness) can be arrived at only in the light of a proper
analysis by means of testing it against likely shortcomings in such evidence in
the manner suggested by SPENCER and FLIN op cit. To reach an intelligent
conclusion in such an analysis it is necessary to apply, as they do, a certain
amount of psychology and to be aware of recent advances in that discipline.
This will undoubtedly mean an increase in the workload of judicial officers and
the machinery of justice generally, but ways must be sought of accommodating
this, as it is the price to be paid for professionally administering justice in
an increasingly complex society.”
The gist of the analysis of the objections to the evidence
of young children by the learned judge is aptly summarised by JOHN REID ROWLAND
in his book Criminal Procedure in Zimbabwe…,;
“(a) Children's memories are unreliable. They tend to have
a good memory of central events and poor memory for detail and evidence of
surrounding circumstances. Their memories, however, tend to respond better to a
sympathetic questioner;
(b) Small children are indeed egocentric, and, as a result,
are less able to be objective about the truth than a more mature person;
(c) Children are highly suggestible. This tendency can be
minimised by use of questions designed to overcome known pitfalls, such as the
propensity to give an inaccurate answer because it suits him better to do so,
either because he wants to be finished with the process or wants to please the
questioner;
(d) Children have difficulty distinguishing fact from
fiction although children do not fantasise over things that are beyond their
own direct or indirect experience;
(e) Children may not understand the duty to tell the truth.
However, one may not generalise on this point. The child's age, intelligence,
and morality will affect his ability to understand the duty to tell the truth.
Therefore, the greater the difficulty the judicial officer has in ensuring that
the child can distinguish between truth and untruth, the greater the care the
court should show in accepting what the child says.”
The learned judge in the court a quo was alive to the need
to treat the evidence of Tawanda with caution in view of his age. This is what
the learned judge stated:
“…,. A child's evidence must be assessed as that of a
child, but the court must ascertain its truthfulness by comparing it with
corroborative evidence and other evidence led on the incident in question. I
agree with them on how a child's evidence must be assessed but do not agree
that Tawanda's evidence is sufficiently corroborated on whether or not he
walked into the bush with the deceased and the accused, and saw the deceased crushing
the deceased's head with a stone. His statement that he was left by the motor
vehicle tends to support the accused's version of what happened before the
deceased's murder. It makes his evidence questionable on whether or not he
witnessed the deceased's murder. HOFFMAN & ZEFFERT 3rd ed on
South African Law of Evidence, dealing with the assessment of the evidence of a
child at p 456 says:
'the court is entitled to take into account any other
features which show that the child's evidence is unquestionably true, and the
defence story false, but it should not ordinarily convict unless there is
corroborative evidence which implicates the accused.'
In this case, I am of the view that the corroborative
evidence of Japhet Tauzeni and Munyaradzi does not implicate the accused but
merely proves that the deceased and Tawanda must have been together at or near
Sandara Farm.”
An analysis of the evidence of Tawanda, based on the
approach recommended in S v Sibanda 1994 (1) ZLR 394 becomes necessary.
The gist of the evidence of Tawanda was that his father
picked them up from their grandmother's place on the pretext that he was taking
them to Karoi in order to obtain birth certificates. The witness stated that
his father lied because they did not go to Karoi. He stated that his
grandmother had told the appellant that they should board a bus. They did not.
Instead, they got into a blue pick-up truck with three occupants. They travelled for a distance after which he,
the appellant and his brother disembarked. They walked into the bush and the
appellant struck the deceased with a stone. He then ran away.
It was contended by the appellant that his evidence was
inconsistent.
He said that he had been left by the vehicle whilst his
father and brother went into the bush. It was also contended that in complete
contradiction to this he had then told the court that he, his father and
brother walked into the bush where he witnessed his father crush the deceased
on the head with a stone. Due to these inconsistencies, it was argued, he was
far away from the scene of the murder and could not have witnessed his father
killing the deceased.
It cannot be gainsaid that the court a quo was itself
critical of the very aspects of his evidence which the appellant is attacking.
This emerges clearly from the observations by the learned judge to the
following effect;
“The admission that he was ordered to disembark from the
motor vehicle supports the accused's claim that at some point in the journey
Tawanda was ordered to disembark from the motor vehicle. If this is considered
in the context of his having been left by the motor vehicle it has the effect
of placing him away from the scene of the murder which Sergeant Nhari said was
about 800 metres from the road. The majority of the court, however, believes he
obviously made a mistake or was misunderstood, when he said he was left by the
motor vehicle. That statement is in fact ambiguous as it can mean the motor
vehicle left him, or that he was left positioned near the motor vehicle. When
the court sought to clarify this issue Tawanda said the motor vehicle had left
when the deceased was struck with a stone and he ran away.”
And later on, the Judge stated:-
“The above demonstrates that the motor vehicle was parked
by the side of the road when he, the deceased and their father walked into the
bush. When he ran away the motor vehicle was no longer present.”
The learned trial judge was of the view that the witness
had embellished his evidence.
This view was buttressed by the evidence of the grandmother
to the effect that when the murder occurred Tawanda was in Grade 1. However, to
the contrary, Tawanda told the court that he was not in school at the material
time. The trial judge also found his evidence to be questionable. He was of the
view that there was no corroboration for the version that he observed the
appellant striking the deceased with a stone. The learned judge was also of the
view that his statement that he was left by the vehicle tended to corroborate
the evidence of the appellant that he was made to disembark from the vehicle
and was left behind. Consequently, he could not have witnessed the murder of
the deceased.
The evidence of Munyaradzi Kondo, who found Tawanda
wandering in the bush in Sandara Farm, was admitted by consent.
Tawanda told the witness that the appellant, the deceased
and he had been together and that he had last seen the other two in Sandara
Farm. The witness was looking for cattle, and the only reasonable inference is
that Tawanda was discovered in the grazing area of the farm.
The evidence of Japhet Mauzeni was also admitted by
consent. On 16 June 2007 he was in the grazing area of Sandara Farm when he
discovered the deceased.
If one accepts that the appellant was telling the truth in
the Defence Outline, that the vehicle travelled a further 200 metres after
Tawanda was made to disembark, this suggests that the vehicle was within a
short distance from where Tawanda had been left as suggested by the appellant.
It is common cause that Tawanda was found wandering in
Sandara Farm. The body of the deceased was discovered in Sandara Farm. A large
stone was found next to the body and the hair on the stone led the police
officers who attended the scene to conclude that it was the murder weapon. Its
weight was 4.718kg. The post mortem report bears no reference to the stone as
the alleged murder weapon.
There was no suggestion that Tawanda was prompted as to the
nature of the murder weapon. Indeed, the learned judge found that he was not
susceptible to suggestions by the police on the nature of the evidence that he
should give.
As observed by the learned judge in the court a quo,
Tawanda is a juvenile and at the time of the fateful events he was aged seven
(7). Due to his age, his evidence had to be treated with caution, due to the
risks attendant upon the acceptance of the evidence of juveniles.
There is no requirement that the evidence be
corroborated.
However, his description of the murder weapon does receive
some corroboration from the evidence. It accords with the injuries found at
post-mortem on the body and with the evidence of the police details who found a
large stone lying near the body with hair on it.
A comparative analysis of the evidence of the appellant
points to even greater inconsistencies than those evident from the evidence of
Tawanda.
The appellant knew that the deceased was dead yet he made
no effort to report to the police immediately after the attack. He went to his
sister to make a report but did not say that the deceased had been murdered. He
did not conduct a search for Tawanda.
He did not tell the court that he had struck one of the
so-called murderers with an iron bar; which was the version he told his mother.
He told the court that he and Tawanda had been threatened with a firearm. He
did not tell his mother of these alleged threats. He had also told the court
that when he was made to disembark he had looked at his deceased child and
started crying. In his testimony, the appellant said that a few days after the
incident he had gone to his mother's homestead with Tawanda who had been
recovered wandering in the bush. He never told his mother that when he left the
vehicle Ronald was already dead. He told the court that on 18 June 2007 he had
gone to Magunje Police Station with his uncle “to check as to the status of his
case.” The police then told him that a body had been recovered at Sandara Farm
and a vehicle had been dispatched to collect the body. Shortly thereafter, the
vehicle arrived with the body of the deceased.
The police details who gave evidence told the court that
the appellant did not make a report on the alleged murder of the deceased by
the three men in the vehicle and that the first report they received was on 18
June 2007 - after the body of the deceased had been discovered in the bush at
Sandara Farm.
The missing child had also not been reported to the police.
There is indeed an obvious conflict between the evidence of
the appellant and Tawanda and the determination of the conflict will inform the
court as to which of the two versions is the most probable. That should resolve
the difficulty that confronted the court a quo as to whether Tawanda was
embellishing his evidence.
The probabilities favour Tawanda's version as opposed to
that of the appellant.
It was unlikely that the appellant's intention was to
obtain birth certificates as he could not do so in the absence of the
children's mother. The children's grandmother had told him that there was going
to be a process for mobile birth registration in the area and he needed the children's
mother to be present for him to obtain the birth certificates.
His evidence that he had, in fact, made an attempt to
obtain the documents is clearly an embellishment.
If the contention by the appellant that Tawanda was not
telling the truth is accepted, the only logical conclusion would be that he was
fantasizing about the events of that fateful day. The learned judge correctly
stated that recent studies have shown that children do not fantasize about
things that they have not experienced. The question that cries for an answer is
whether Tawanda would fantasize about the murder of his brother at the hands of
his own father. During the trial, he stated that the police had tried to make
him give a statement implicating the occupants of the vehicle and he had
refused.
The learned judge stated that he accepted that Tawanda did
not give evidence according to what was suggested to him or out of fantasy. He
found the evidence unsatisfactory because of inconsistencies. I will quote the
reasoning of the judge hereunder:
“I would therefore agree with Mr Nkomo, but for different
reasons, that his evidence should be treated with caution. He, for instance,
said he had never been to school, when Eneresi his grandmother said he was in Grade
One when his father took him away from her. He can, in my view, be similarly
untruthful on other aspects of his evidence.
The State summary on Tawanda's evidence is at variance with
Tawanda's evidence. He is theresaid to have seen the accused's accomplices
wearing black clothes, and the accused receiving money from the accomplices. It
is there alleged that he heard the driver and the accused conversing about
cutting the ear and the head as they pointed at the deceased. The State Outline
also alleges that the deceased remained in the truck held by one of the men
while he and his father were ordered to disembark. He is alleged to have seen
the driver coming out of the vehicle holding three knives, and the accused
going to the vehicle where the deceased was being held. He is alleged to have
thereafter witnessed a violent scene at the motor vehicle after which he ran
away. The State did not ask Tawanda about these details. The defence did not
cross examine him on them but put it to him that his evidence in court was
different to what was recorded in his statement to the police. Tawanda's
statement to the police was not produced. The court cannot determine whether or
not he would have confirmed what is alleged in the State's summary of his
evidence if he had been asked about them or given an opportunity to comment on
them. A witness's credibility cannot be affected by his not mentioning
something if he is not asked about it, or if he has anything else to say
relevant to the case.”
The learned judge went on to state:
“The difference between the State Outline and the
complainant's or witness's evidence during the trial cannot be held against the
complainant or the witness as they do not take part in the preparation of the
State's Outline. The difference must however be satisfactorily explained as it
will be fatal to the State's case if it remains unexplained when the State
closes its case. In S v Nicolle 1991 (1) ZLR 211 at 214B-G KORSAH JA commenting
on the functions of the State's and defence outlines, and the effect of the
complainant's departure from the State's Outline said:
'Commenting on the importance of the part played by the
respective outlines of cases in a criminal trial, SQUIRES J said in S v Seda
1980 ZLR 109 (G) at 110H – 111A:
'They perform a similar function to the pleadings in a
civil trial, and serve not only to identify what may be in issue between the
State and the accused, but to advise each of the substance of the matters that
are in issue, with the obvious advantages this affords of avoiding delay in
completing the trial. In addition, it must always be appreciated that just as
any significant and unexplained departure by the accused in his evidence from
the outline of the defence which he makes may be a matter for comment or even
adverse conclusions, so does such a consequence affect what is said by the
State witnesses.'
While citing the above dictum of SQUIRES J with approval, I
hasten to point out that whereas the outline of defence is prepared from what
the accused person tells counsel, and is tendered in evidence with his
approval, the outline of State case is not prepared on the instructions of the
complainant and is certainly not approved by the complainant before it is
tendered in evidence and does not constitute part of the complainant's
testimony. I would suggest that the reason for drawing an adverse conclusion
when the outline of State case is seriously at variance with the evidence of
the prosecution witnesses is that because of the conflict between the two a
doubt is raised as to whether the State witnesses are being truthful. Such a
conflict may easily be explained by the production of the complainant's
statement to the police. But if this is not done, so long as that conflict is
unresolved at the end of the hearing, the benefit of the doubt must be accorded
to the accused; for it would not be possible to say that the State has proved
the case which it undertook from the onset to prove, and has therefore proved
its case beyond a reasonable doubt.'”…,.
The weight to be attached to Tawanda's evidence, must, in
view of the irreconcilable variances between his evidence in court and what the
State Outline said he was going to tell the court, be carefully considered.
The learned judge proceeded to assess the evidence of
Tawanda and concluded that the variance in the State Outline and what he had
said in his evidence had not been satisfactorily explained. It was the view of
the learned trial judge that the variance had created a reasonable doubt in the
State case which could only be resolved in the accused person's favour.
In my view, the dilemma with which the learned trial judge
was plagued was easy to resolve on the criteria advocated in S v Sibanda 1994 (1)
ZLR 394. The court sought to treat Tawanda as an adult witness and assessed his
evidence from that premise.
However, when his evidence is viewed in its totality within
the context of the events of that day there is no suggestion that he is so
concerned with himself that he was unable to be objective in telling the
truth. The issue of suggestibility was
resolved by the learned judge when he stated that Tawanda refused to give
evidence based on suggestions from the police.
As stated earlier, the judge concluded that children do not
fantasize about events they have not witnessed. His story on the manner in
which the deceased was struck was stark and devoid of frills. He said that the
appellant stuck the deceased on the head with a stone. Frightened by this he
ran away. He could have embellished his evidence by putting detail to the
events. He did not. He gave a simple story.
The issue of false allegations is admittedly the one that
would cause the most difficulty where the evidence of a child is subjected to
analysis. The question the trial court should have asked itself is why a child
would make false allegations of such a serious nature against his own father.
In his judgment, the learned trial judge commented thus
when discussing the evidence of Tawanda and that of the appellant:
“On comparison, Tawanda's evidence is more credible than
the accused's for the following reasons. The accused lied when he told his
mother that there were other passengers in the motor vehicle. He lied to his
mother about fighting their alleged assailants. He, in his evidence in court,
gave a different version which does not say he fought their assailants. He, in
it, does not say he threw Tawanda out of the motor vehicle. He does not say
himself he jumped out of the motor vehicle and ran away. This, plus the general
credibility of Tawanda as a witness satisfied the majority. It, however, did
not remove the doubt I entertained on the reliability of his evidence.”…,.
Once the learned trial judge found that the appellant had
lied and that Tawanda was a more credible witness that should have been the end
of the matter. If the appellant lied about the manner in which Tawanda left the
motor vehicle, it is inconceivable that his version of the attack on the
deceased could be credible.
THE POST MORTEM
REPORT
It was suggested, on behalf of the appellant, that the
murder weapon was not the stone recovered by the police because it did not have
blood.
Although the police witnesses suggested that it had bits of
hair when recovered, when it was produced in court the hair was missing. Much
was made by defence counsel of the missing hair. It was suggested that the
deceased could not have been struck with that stone due to the missing hair. It
was also contended that the trial court erred in relying on the evidence of
Tawanda as to the manner in which the deceased was killed when his evidence was
not supported by the postmortem report compiled by the pathologist.
I do not find anything in the post mortem report which
would lead to the conclusion that the evidence of Tawanda is in conflict with
the report. Indeed, the trial court found that the report confirmed that two
blows had been delivered to the deceased's head. It was never suggested during
the trial that the injuries found on the deceased were not consistent with a
stone as opposed to an iron bar as claimed by the appellant….,.
WHETHER OR
NOT THE STATE PROVED ITS CASE BEYOND A REASONABLE DOUBT
It is contended by the State that the evidence of Tawanda,
taken together with the evidence of the police and the post mortem report
itself presents a very strong case which establishes proof beyond a reasonable
doubt.
I agree.
Proof beyond a reasonable doubt is not proof beyond any
shadow of doubt. I am fortified in this view by the remarks of DUMBUTSHENA CJ
in S v Isolano 1985 (1) ZLR 62…, to the following effect:
“In my view, the degree of proof required in a criminal
case has been fulfilled. In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), LORD DENNING described the degree of
proof, at 373H, as follows:
'…, and for that purpose, the evidence must reach the same
degree of cogency as is required in a criminal case before an accused person is
found guilty. That degree is well settled. It need not reach certainty, but it
must carry a high degree of probability. Proof beyond a reasonable doubt does
not mean proof beyond a shadow of doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course of
justice. If the evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed with the sentence of course it
is possible, but not in the least probable, the case is proved beyond a
reasonable doubt, but nothing short of that will suffice.”
The doubt that remained in the mind of the trial judge was
concerned with the evidence of Tawanda as to whether or not he remained by the
vehicle when he disembarked. This is due to the statement;
“I was left by the vehicle.”
The court took the statement to mean that he remained at
the vehicle.
If the statement is examined within the context of his
entire evidence it can only logically be taken to mean that the vehicle drove
off without him. To this statement is added his clear and unequivocal statement
that the three of them had walked into the bush where he observed the appellant
strike the deceased on the head with a stone. Indeed, the inescapable
conclusion is that the confusion in the testimony could have been attributed to
inaccurate interpretation of the vernacular. The learned assessors would have
heard the vernacular and consequently understood the import of the evidence
from Tawanda. When it was put to him that he and the appellant had disembarked
leaving the deceased behind he said that was not true. He told the court that
the police had told him to say that deceased had been killed by strange men.
I am in agreement with the submissions by State counsel
that the lies told by the appellant actually buttress the evidence of the State
witnesses that the deceased was killed by the appellant. In preferring the
evidence of Tawanda to that of the appellant, the court, in fact, accepted
Tawanda's evidence as a correct statement related to the events of that day.
In this case, the trial court would have been justified in
finding corroboration in the lies told to it by the appellant….,.
Further, and in addition, the fact that the appellant told
lies about the events of that fateful day is a factor that has to be considered
when drawing inferences about his guilt….,.
In this case, inferences are to be drawn from the
untruthfulness of the appellant and the totality of evidence pointing to his
guilt.
CONCLUSION
In my view, the majority decision, that the
appellant was guilty of murder with actual intent cannot be assailed. The
conviction was proper.
