MAVANGIRA J: After hearing the parties in this matter we dismissed
the appeal against conviction and sentence in count 1 in its entirety and
allowed the appeal against sentence in count 2. The following are our reasons
for doing so.
The appellant, who
is a Police officer, was charged with firstly defeating or obstructing the
course of justice and secondly, malicious injury to property. He pleaded not
guilty to both counts but was convicted after a trial. He was sentenced on the
first count to 18 months imprisonment of which 9 months imprisonment was
suspended for 5 years on condition of future good behaviour. On the second
count he was sentenced to 18 months imprisonment of which 9 months imprisonment
was also conditionally suspended for 5 years. A further 3 months imprisonment
was suspended on condition the accused paid restitution of $15 000 000.00 to
the Ministry of Home Affairs. Both sentences were ordered to run concurrently.
The accused now
appeals against both convictions and sentences.
The facts are that
police details from Chivhu Police Station were driving towards Mupatsi Business
Centre where they intended to go and arrest one Mabasa Phoni Mupatsi. Whilst
they were on their way they were flagged down by the accused who asked for a
lift to Mupatsi Business centre. The accused called three colleagues who
boarded the police vehicle with him. It was a pick-up truck and they jumped
into the back of the truck. After travelling a short distance therefrom, one of
the police details realised that Phoni Mabasa Mupatsi whom they intended to
arrest at the business centre was one of the passengers who they had just given
a lift in the vehicle.
The police stopped their
vehicle. One Sergeant Munyaradzi alighted from the vehicle and went to where
Phoni Mabasa Mupatsi (Phoni) was seated. He identified himself to Phoni, placed
his hand on Phoni's shoulders and told him that he was under arrest. Sergeant
Munyaradzi told Constable Marufu who had also alighted to handcuff Phoni as he
was a wanted person. Constable Marufu managed to handcuff Phoni's right hand.
It was at this stage that the accused jumped out of the vehicle and stated that
the police details were not going to take Phoni with them. The accused grabbed
Sergeant Munyaradzi while the other occupants came to wrestle Sergeant
Munyaradzi who was trying to handcuff Phoni's other hand. Sergeant Chatikobo
who had alighted and left the engine running was holding Phoni's legs.
During the scuffle the accused shouted that they would destroy the
vehicle. The accused started throwing stones towards Sergeants Chatikobo and
Munyaradzi who were wrestling with Phoni as they tried to handcuff him. The
accused threw stones which struck Sergeant Munyaradzi on the left thigh and the
left shoulder. He also threw a stone which struck the windscreen of the truck
on the driver's side. The details who were trying to handcuff Mupatsi then
released him and also advised Constable Marufu who was being attacked by two of
the accused's colleagues to retreat. The accused and his colleagues then went
away with the handcuffs as well as the car keys which the accused had removed
from the ignition during the scuffles. The police thus failed to arrest
Mupatsi.
The accused was only arrested at his residence when the police
returned with reinforcements.
The facts related above give rise to the two counts with which the
accused was charged. The charges are that he defeated or obstructed the course
of justice by making it impossible for the police to arrest Mupatsi who was
wanted by the police in connection with certain criminal allegations. Secondly,
that he maliciously injured the State in its property in that he struck and
damaged the police vehicle windscreen with a stone.
The question to be determined is whether there has been an improper
splitting of charges. In R v Peterson
& Ors 1970 (1) RLR 49 at 51G-I BEADLE CJ stated:
“In the earlier cases to which the learned judge referred with
approval, two basic tests are set out. One is that where a man commits two
acts, of which each, standing alone, would be criminal but does so with a
single intent, and both acts are necessary to carry out that intent, then he
should only be convicted of one criminal offence. Another commonly applied
test, which is a useful one in certain circumstances, is that the same evidence
which is essential to prove one criminal act should not be used again as
essential evidence to prove another. Where the essential evidence in such cases
proves two criminal acts, only one should be charged. There are, however, many
instances where this test is inapplicable. This test, however, is only applicable
where the evidence is essential evidence, proving an essential ingredient of
the offence. The mere fact that evidence may be relevant to two separate
charges has, of course, little bearing on this problem. … ”
In S v Simon 1980 ZLR162
at 164B-C DUMBUTSHENA J (as he then was) stated:
“On the evidence as disclosed in the record it is clear that accused
held himself out as a policeman in order to induce the complainants to part
with their property or money. The criminal acts thus separately charged, that
is, the two counts of robbery on the one hand and the contravention of section
70 (1) (a) of the Police Act on the other hand, were done with one criminal
intent and constituted one continuous criminal transaction, and the evidence
necessary to establish the two counts of robbery involved proving the
impersonation. See R v Tarewa, 1949
S.R. 158; 1949 (4) S.A. 347 (S.R.) at 348; R
v Malako, 1959 (1) S.A. 569 (O.).”
In that case Dumbutshena J invited comments from the
Attorney-General. He quoted the comments received from the Director of Public
Prosecutions. The comments read in part:
“The approach to be used in such cases was laid down by the
Appellate Division in S v Brereton,
1970 (2) R.L.R. 272 (A.D.) where it was said at p 277A:
'In such cases, where the accused, in pursuance of the dominant
intention, commits a number of offences, the proper thing to do is to charge
him with only that offence which was his dominant purpose.'”
The headnote in S v Jambani 1982 (2) ZLR 213 (HC) reads:
“It frequently occurs, during the course of criminal conduct, that
several offences are committed. To charge the accused with all those offences,
however, may well result in prejudice to him, since the whole of the criminal
conduct imputed to him in substance only constitutes one offence. In such a
situation, the correct course is to charge the accused with that offence which
was his dominant purpose. This does not mean that the test of 'dominant
purpose' is the only one to be applied; in some situations it may still be appropriate
to charge the accused with more than one offence.”
Further still, in S v
Mutawarira 1973 (1) RLR292 at 296C - F BEADLE CJ said:
“The law on the subject of splitting of charges was extensively
examined by the Appellate Division of South Africa in S v Grobler & Anor., 1966 (1) S.A. 507 (A.D.), and by the
General Division of this court in R. v.
Peterson & Ors., 1970 (1)R.L.R. 49. Peterson's
case (supra), in effect, adopted
all the reasoning in Grobler's case (supra). The principle which appears from Grobler's (supra) (I quote from p.518 where Wessels, J.A., quotes from the
judgment of KOTZE, J.P.. in the case of Gordon
v R, 1909 E.D.C. 254), is that:
“'It is difficult, if not impossible, in view of the
decided cases, to lay down a hard and fast rule, which will apply with justness
in every instance …'”
WESSELS, JA,
summed up the approach to this problem at p 523 thus:
“Having regard to the genesis of the rule (which could in my opinion
be more aptly described as a rule of practice against the duplication of
convictions) I am of the opinion that it was designed to prevent a duplication
of convictions in a trial where the whole of the criminal conduct imputed to
the accused constitutes in substance only one offence which could have been
properly embodied in one all-embracing charge and where such duplication
results in prejudice to the accused”.
In casu, it is clear that the appellant's
dominant purpose was to prevent the arrest of his brother, Phoni. The police
vehicle was damaged during the process of trying to achieve that dominant
purpose. From a perusal of the authorities, including those cited above, it
would appear that what happened in this case was therefore an improper
splitting of charges. For that reason the conviction on the second count, of
malicious injury to property cannot be allowed to stand.
The appellant
contends that on the merits of the case he ought not to have been convicted of
defeating or obstructing the course of justice. He contends that he did not
know that these were police officers. This contention is disproved by his own
statement in his defence outline when he stated as follows:
“… They now demanded fare and this made to suspect that they were
not police officers.”
If it was the alleged demand for fares which made him suspect that
the persons who had given them a lift were not police officers, then it
confirms that the police details had in fact, as they stated, identified
themselves as police officers.
The appellant also
contends that the lower court ought not to have convicted him on the basis that
it did not believe his version. The case of R
v Difford 1937 AD 370 at 373 was cited. GREENBERG J stated therein that:
“No onus rests on an accused to convince the court of the truth of
any explanation which he gives. If he gives an explanation, even if that
explanation is improbable, the court is not entitled to convict unless it is
satisfied, not only that the explanation is improbable, but that beyond any
reasonable doubt it is false. If there is any reasonable possibility of his
explanation being true, then he is entitled to his acquittal.”
The trial court
having found the appellant's story to be false and unacceptable, it was
justified in convicting the appellant. The appellant's contention to the
contrary in this regard is based on a half-baked appreciation of the dictum in
the Difford case. The conviction is
properly justified and supported by the evidence on record. The court's
judgment is clear and based on sound grounds. I thus find no valid concerns
which have been raised in relation to the conviction.
Regarding sentence,
the accused being a police officer, was dealt with appropriately by the trial
court. His whole conduct during the whole incident is deplorable. It shows
lawlessness which cannot be expected, let alone condoned or taken lightly, if
exhibited by a police officer. Furthermore, knowing that these were police
officers, he ought to have conducted himself in a manner as to complement their
efforts, not to frustrate them. A custodial sentence was called for. The lower
court's reasoning in this regard cannot be faulted.
In the result, the
conviction and sentence in count 1 are upheld while in count 2 the conviction
is quashed and the sentence set aside. These were the reasons for our dismissal
of the appeal against conviction and sentence in count 1 in its entirety while
allowing the appeal against conviction and sentence in count 2.
KARWI J, agrees…………………….
Chihambakwe, Mutizwa & Partners, appellant's legal practitioners
