HIGH COURT OF ZIMBABWE
MAKARAU JP AND MUSAKWA J
HARARE, 3 APRIL, 2008 and 21 January 2009.
J.R Tsivama, for appellant
M. Mugabe, for respondent
MUSAKWA J: The appellant was charged with two counts of robbery to which he pleaded not guilty. The first count was committed at house number 823 Wallis Road, Mandara, Harare. During the commission of this count, a Mitsubishi Pajero motor vehicle, registration number 762-516 W, an assortment of household electronic gadgets, personal documents and cash were stolen. The second count was committed at house number 27 Braemer Road, Mount Pleasant, Harare, where a Land Rover Discovery vehicle, registration number AAT6367 was stolen. Following his conviction on both counts he was sentenced to a total of twenty years imprisonment of which three years were suspended for five years on condition of good behavior. He noted an appeal against both conviction and sentence.
The evidence led by the state was to the effect that on 20 November, 2000 Priscilla Chitukurudzi, the complainant in the first count drove home in her Mitsubishi Pajero motor vehicle around 5.30 p.m. When she turned into the driveway a white B.M.W motor vehicle followed her. Some people disembarked from the B.M.W vehicle, produced guns and told her to get out. She did not comply and as she drove into the premises they followed her. Inevitably she could not go further as she had to stop by the swimming pool. The driver’s window to her vehicle was smashed with a flower pot.
She was dragged from the vehicle and assaulted. As a result of the assault she sustained cuts and bruises as well as loose front teeth. Guns were also pointed at the children. In the process household electrical goods as listed in exhibit one were stolen. The stolen goods were loaded in the complainant’s vehicle. The complainant later identified the property after it had been recovered by Police.
In respect of the second count the complainant, Shang Menquan testified that on the 20thNovember, 2000 he arrived home from Ruwa at about 7.30 p.m. As he was about to disembark from his vehicle in order to open the gate a BMW vehicle stopped behind him. About five men emerged and a pistol was pointed at him. When the complainant’s friend came from the house in reaction to the commotion, a firearm was also pointed at him and he retreated. The complainant was assaulted in the process. Some gun shots were also fired. The complainant’s vehicle, a Land Rover Discovery was then stolen.
Five other state witnesses testified. The evidence shows that the appellant was residing at house number 11 Birkdale Road, Glen Lorne together with his associates as well as three of the state witnesses. The appellant’s associates were Frank Chadoka, Ngoni Motsi (a co-accused), Kenny and Rita. The appellant had also invited Anne Mpalume, a niece to take up residence at the house. There were two domestic servants employed by Frank namely, Brian Musiiwa and Chineni Nhidza. The two stolen motor vehicles as well as other goods belonging to Priscilla Chitukurudzi were taken to this house on the same day they were stolen. These goods were recovered by Police when they conducted a raid on the house on 30thNovember, 2000. The appellant was subsequently arrested in a room at Holiday Inn where he had taken up residence.
In convicting the appellant, the trial court relied on the evidence of Anne Mbaluma, Tonderai Maringosi and Brian Musiiwa. In the view of the court, which view I agree with, the evidence from these witnesses implicated the appellant in the theft of the two vehicles forming the subjects of the two counts.
In the notice of appeal filed on his behalf, the appellant raised eleven grounds of appeal against his conviction as follows:
- That the learned magistrate erred in convicting the appellant when there was no direct evidence against him.
- That all the witnesses who gave evidence for the state indicated that the appellant was not residing at the address where the motor vehicles were found but occasionally came as a visitor.
- That during the period the appellant visited this place, the appellant never drove any of the stolen vehicles.
- That there was no evidence connecting the appellant with the stolen vehicles.
- That there was no evidence direct or indirect connecting the appellant with the commission of the offence.
- That the learned magistrate convicted the appellant purely on the basis that he visited the house where the vehicles had been stored and where the police found the vehicles.
- It is respectfully submitted that there was no clear evidence as to who had committed the offence, namely that all the offences had been committed by Frank Chadoka who absconded and it is clear from all the evidence that he was given a proper warning, most likely by the police themselves to abscond before the place was raided.
- The police were unable to explain how Frank Chadoka could have known that the police intended to raid the premises and why he was not arrested after the premises had been raided. There was no effort by the police to have Frank Chadoka arrested.
- The evidence from the State witnesses was that the house where the vehicles were found was leased by Frank Chadoka as a tenant. He had invited a friend, Raymond Maringosi, (the appellant) to reside with him. The appellant had no relation with Frank Chadoka. It is important to note that this was the evidence from the State witnesses. The appellant visited his friend who was not directly connected with the theft of the motor vehicles.
- That the learned magistrate erred by sating that he was convicting appellant because he did not believe his story. It is respectfully submitted that an accused person is not convicted because he has not given a story acceptable to the presiding magistrate but should be convicted on evidence beyond reasonable doubt. It is not a question of comparing the State’s version and the accused’s version but of evidence proving the guilt of the accused person.
- It is respectfully submitted that for the reasons above, the conviction should be set aside and the accused person found not guilty.
As against sentence, the appellant raised four grounds of appeal, whose net effect was that the sentence imposed is excessive and induces a sense of shock. At the hearing of the appeal, Mr Tsvivama argued on three main grounds. He argued that the lower court erred in accepting the incriminating evidence of Anne Mpalume in view of some discrepancies between such evidence and that of Brian Musiiwa. He also argued in the alternative and in respect of the second count, that the trial court erred in convicting the appellant by employing the doctrine of common purpose when there was no evidence that he formed common purpose with the persons who stole the vehicle forming the subject of the second count. Finally he argued that the sentence imposed on the appellant was excessive in the circumstances of the matter.
1. Whether the trial court erred in relying on the evidence of accomplice witnesses.
2. Whether the appellant was properly convicted in respect of the second count on the basis of common purpose.
3. Whether the sentence imposed was appropriate in the circumstances.
Brian Musiiwa and Tonderai Maringosi, the appellant’s cousin were treated as accomplices and warned in terms of the Criminal Procedure and Evidence Act [Chapter 9:07]. There does not appear to have been a basis for the State to treat these two witnesses as accomplices. It seems that the prosecutor took a cue from the fact that Brian Musiiwa had been arrested together with Anne Mpalume when Police raided the house. Police arrested the two as they are the ones who were found at the house where they recovered the stolen property. However, there is clearly no evidence to suggest these two witnesses associated with the appellant and others with any criminal intent. These are not witnesses with a motive to lie or who at some stage were accessories before or after the fact.
As regards Tonderai Maringosi, he had been in contact with the appellant and his associates subsequent to the Police raid. He is related to the appellant and he used to visit house number 11 Birkdale Road. It was his testimony that after the Police raid the appellant had tried to dissuade him from returning to his home and driving his green Nissan vehicle which Police were looking for.
Burchell and Hunt in South African Criminal Law And Procedure have this to say about an accomplice –
“An accomplice is one who takes part in the commission of the crime, other than the perpetrator(s) and other than the accessory after the fact. Accomplice liability is distinct from that of the perpetrator, being based on the accomplice’s own unlawful conduct and fault (mens rea) but it is also liability which is accessory in nature in that there can be no question of accomplice liability without a perpetrator who commits the crime.”
Although Tonderai Maringosi gave a lift to appellant and company as well as buying them food, there is nothing to suggest that he did so with the intention of harboring them from Police and thus obstructing the course of justice. Mr Tsivama for the appellant took issue with the manner in which the trial magistrate admonished Tonderai Maringosi. The warning was indeed flawed but nothing turns on it in light of the observation that he was not an accomplice.
Mr Tsivamaalso took issue with the discrepancies between the evidence of Anne Mpalume and that of Brian Musiiwa, especially on the sequence and the time of arrival of the stolen vehicles. I do not think that affects the overall thrust of the evidence. It would be too much to expect the witnesses to have kept a record of the movements of the appellant and his associates. If they had given identical evidence, the likely contention would have been that they connived to incriminate the appellant.
It was also submitted that Anne Mpalume must have been unduly influenced by Police to falsely incriminate the appellant. This is attributed to the fact that she gave two statements whose contents were different in some respects. The witness appears to have given a satisfactory explanation concerning the two statements. In any event it was not her initiative to give the additional statement. The defense should have quizzed the investigating officer.
Overall, Anne Mpalume’s evidence seriously incriminates the appellant if one considers the nature of their relationship. There was no suggestion that there was bad blood between them. The trial court found her to be credible and it is not one of the grounds of appeal that it misdirected in finding that she was a credible witness.
Mr Tsivama also submitted that there was no evidence on which the appellant’s liability could be based on common purpose. He highlighted the disparities in the times and places of the commission of the offences as well as when the vehicles arrived at house number 11 Birkdale Road. He was of the view that the appellant could not have been part of the persons who robbed the second complainant as there was evidence to suggest that the complainant was trailed all the way from Ruwa. The State, represented by Mr Mugabe also conceded that there was no evidence incriminating the appellant in respect of the second count.
With respect I do not agree with both counsel in this regard and I am of the view that the concession by Mr Mugabe is not properly made for the reasons that follow.
It is pertinent to consider the factual background in more detail. On the day of the robberies, the evidence establishes that the appellant and his colleagues left the house driving in a white BMW vehicle. Later Frank returned driving a Mitsubishi Pajero that had no passenger window. There was broken glass on the passenger seat and floor. A short time afterwards the appellant arrived driving the Land Rover Discovery. The appellant assisted in off-loading goods that were in the Pajero with the broken front window. The goods that he assisted in offloading included a colour television set stolen from the complainant in the first count, which television set was placed in the lounge. Anne Mpalume testified on seeing a brown handbag with the particulars of Priscilla Chitukurudzi in the pantry. The contents of the handbag were destroyed by the appellant and Frank. This was observed by Anne Mpalume as she stood by the swimming pool. Priscilla Chitukurudzi’s identity card was later recovered intact by Police.
When Police raided house number 11 Birkdale Road some people fled leaving behind Anne and Brian whom they arrested. The flight was confirmed by Anne and Brian. Tonderai testified on his meeting the appellant, Frank and Ngoni. The three discussed in his presence the Police raid and their flight from the house. Tonderai was later told by the appellant that the vehicles at the house were stolen. The appellant had also told Tonderai that he had used his passport. This is the passport that was in Simon Nyika’s name but with Tonderai’s photograph. Tonderai was also requested by the appellant not to go back to his home or to use the Nissan Sunny vehicle as Police were on the lookout for him. When Police officers raided the Glen Lorne house, they also recovered three pistols and a .303 rifle and magazine. In the appellant’s hotel room they recovered an identity card with appellant’s photograph but bearing a different name.
The trial court came to the conclusion that the two robberies were planned by all those who were involved. It took note of the modus operandi and concluded that the accused persons must have acted together on both occasions. I find no fault in this reasoning taking into account the evidence that I have highlighted.
In my view, while there is no reliable evidence on the identification of the appellant and his co-accused, there is sufficient circumstantial and other direct evidence tending to link the appellant to the offence. Burchell and Hunt (supra) have this to say in respect of common purpose at page 307-
“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.”
It follows from the above quote that there need not be express agreement to commit an unlawful act. Both counsels must have lost sight of the words “actively associate” used in the quote. In the case of Safa Ncube v S S.C 90/90 McNally J.A had this to say about common purpose-
“The essence of the doctrine of common purpose is that when two or more persons associate in a joint unlawful enterprise, each will be responsible for any acts of his fellows which fall within their common design or object…………….. Association in a common design or object or purpose is, in this case, the key issue.”
Therefore, there need not be evidence of the appellant’s direct participation in the two robberies. His association with the others and the proceeds of the robberies was sufficient to bring him within the ambit of the common purpose. In addition the sheer cumulative nature of incriminating evidence against the appellant does not leave one with a reasonable doubt that he committed the offences.
On the basis of the foregoing, the appeal against conviction cannot succeed and shall be dismissed.
There is no doubt that offences of this nature merit severe punishment. The way the offences were committed and the overall manner in which the appellant and his associates conducted themselves is a typical manifestation of organized crime. The public needs protection from such a menace. However, the appellant did not benefit much as the bulk of the stolen property was recovered.
In casu, the trial court did not suspend any portion of the sentence imposed on condition of good behaviour. I am aware that a number of authorities have criticized the practice of imposing a lengthy custodial sentence and then suspending a portion on condition of future good behaviour. In this respect see the cases of Francis Shitto and Phillip Shitto v S SC 75/97, S v Gorogodo 1988 (2) ZLR 378(SC) and A-G v Paweni Trade Corporation (Pvt) Ltd & Others 1990 (1) ZLR 24 (SC). The rationale behind that criticism is that a suspended sentence serves two purposes. It acts as a deterrent as well as helps rehabilitate an offender. However, a lengthy prison sentence serves the same purpose. Therefore, if a long prison term fails to rein in an offender it is unlikely that a suspended sentence would achieve that purpose. I would want t believe that the trial court was guided by these principles in not suspending a portion of the sentence it imposed on the appellant.
It is my view however that the trial court could have adopted a different sentencing, an approach that is now preferred when dealing with multiple counts. It could have assessed one globular sentence for the two counts. Alternatively, it could have ordered a portion of the sentence in one of the counts to run concurrently with the sentence in the other count. In this manner, it palliates the overall effect of the sentence. (See the case of S v Sifuya 2002 (1) ZLR 437(H))
Taking into account the factors I have referred to above, I am of the view that the sentence imposed in the matter is manifestly excessive and should be set aside.
Taking both counts as one for the purposes of sentencing, I substitute the sentence imposed by the trial court by one of fifteen years imprisonment.
In the result, I make the following order:
- The appeal against conviction is hereby dismissed.
- The appeal against sentence is allowed.
- The sentence imposed by the trial court is hereby set aside and in its place the following is substituted-
“Fifteen years imprisonment.”
MAKARAU JP agrees.
Sawyer & Mkushi, appellant’s legal practitioners
Attorney-General’s Office, respondent’s legal practitioners