S v Chimwidze (CA 215 of 2014) [2015] ZWHHC 297 (25 February 2015)

1 HH 297-15 CA 215/14 LAVIOUS CHIMWIDZE versus THE STATE HIGH COURT OF ZIMBABWE BERE & MUSAKWA JJ HARARE, 26 FEBRUARY 2015 Criminal Appeal I Gonese, for the appellant T Mapfuwa, for the respondent BERE J: After a protracted trial the appellant was convicted of the crime of theft as defined in s 113(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. Pursuant to his conviction the appellant was sentenced to 36 months imprisonment of which 6 months were suspended for 5 years on the usual conditions of good behavior. A further 12 months were suspended on condition of restitution and the remaining 18 months were suspended on condition the appellant performed 630 hours of community service. Aggrieved by both his conviction and sentence the appellant noted an appeal against both and has now approached this court for relief. Basically two grounds of appeal have been raised by the appellant and these appear to have been quite pronounced throughout his trial in the lower court. It was contended on behalf of the appellant that in determining his fate, the learned magistrate failed to appreciate that the appellant raised the defence of alibi which ought to have been investigated and disproved. Secondly, the court a quo was attacked for having failed to appreciate that the appellant was challenging the way the identification process was handled. I propose to deal with these two grounds of appeal in seratium. It is settled in our law that once an accused raises the defence of alibi that defence must be investigated and a definitive HH 297-15 CA 215/14 position taken by the court. This defence is crystally explained by LH Hoffmann and DT Zeffertt in the following way: “If there is direct or circumstantial evidence which points to the accused as the criminal the most satisfactory form of rebuttal is for him to show that he could not have committed the offence because he was somewhere else at the relevant time. This is called the defence of alibi, but it is essentially a straightforward denial of the prosecution’s case on the issue of identity ………………….. In R v Biya the appellate division said that the accused never bore the onus of proving his alibi. It is sufficient if it might reasonably be true.”1 ‘See also State v Mutandi2 In State v Musakwa, McNally JA in his usual eloquence could not have put it in any better way when he remarked as follows: “What no-one seems to have realised is that the defence raised was that of an alibi. The appellant was saying that he had only just arrived when he was accused. So he was not there when the confidence trick was set in motion. The appellant said so right from the beginning. So why did the police not check whether he was being truthful……… Why did they not check how long it takes to walk from there to the spot where the offence was committed……. The court should have been alive to the importance of these matters……….”3 It is clear from the record of proceedings in this case that the accused raised the defence of alibi right from the time he was arrested but this was never investigated despite it being clear that the police were obliged to investigate and disprove the position taken by the accused person. The second ground of appeal raised by the appellant was that of the flawed manner in which his identification as the culprit was conducted. Commenting on identification Shreiner JA stressed that the cardinal principle in the identification process is fairness to the accused person and went on to state as follows; “An identification parade, though it ought to be a most important aid in the administration of justice, may become a grave source of danger if it creates an impression which is false as to the capability of a witness to identify the accused…….”4 Back home, in S v Goma5 the court reaffirmed that:- 1 The south African Law of Evidence, fourth edition, Butterworth, p.619 2 1996(1) ZLR 367 H 3 1995(1) ZLR 1 at p. 4 R v Kola 1949(1) PH H100 (A) HH 297-15 CA 215/14 “…………………….. evidence must be led showing conduct of an identification parade in accordance with established police procedures, with all its safeguards” Throughout his cross examination of the witnesses and in his own evidence in chief the appellant maintained that the witnesses may have genuinely made an error in pointing him out as the person who duped them. In a way, the appellant was speaking to a flawed identification process. There was no clear evidence tabled before the court a quo to show how the witnesses identified the appellant. The impression one gets after going through the record of proceedings is that the appellant was actually taken to one of the principal state witnesses Tawanda Chidzamba and shown to him as a suspect. This is confirmed by Tawanda himself when he gave an insight to the court with regards to how the appellant was arrested. He stated as follows: “when the police came to evaluate the scene, he was in the company of a certain gentleman. When the gentleman heard my story, he told me that the modus oparandus was like what a certain man had just done to him and that he knew where he was. The police then went to the old Post Office and found accused. I was called and proceeded there. I then saw accused person. He was then arrested.”6 If this is how the appellant was identified by Tawanda, it was a dangerous way of conducting an identification parade. It is most dangerous in my view for the police to go out there, arrest a suspect and bring him to the doorsteps of a victim of the criminal conduct and ask the victim “Is this the person who did it?”. The evidence of the other two state witnesses, viz, Webster Nyamukute and Leonard Muchini does little to shed light to the court as to how they were individually called upon to identify the appellant. The State case is further compounded by the failure by the State to call the police officer who conducted the identification parade given the damaging evidence given by the appellant that the police officer actually pointed at him as the culprit after Leonard Muchini had pointed at one Tichaona Simango as the one who had duped him. The evidence as captured in the record of proceedings was jumbled up and it is most unsatisfactory for us as the appellate court to confirm the conviction of the appellant. 5 HH21 - 93 6 Page 20 of the consolidated record of proceedings Sadly for us, this is one of the many cases that we have dealt with where an otherwise guilty man has to be acquitted because of poor presentation of evidence in the court a quo. In the final analysis the appellant is found not guilty and acquitted. HH 297-15 CA 215/14 Messrs Gonese and Ndlovu, legal practitioners for the appellant National Prosecuting Authority, respondent legal practitioners MUSAKWA J agrees:………………………………….