S v Madzura (303 of 2021) [2021] ZWHHC 303 (22 June 2021)

1 HH 303-21 B 1880/20 CRB KAR 1710/19 CA 832/19 REASON MADZURA versus THE STATE HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 23 November 2020 & 22 June 2021 Reasons for judgment- Bail Pending Appeal Applicant in person A. Muzwi, for respondent CHITAPI J: The applicant applied for bail pending appeal. I dismissed the application on 23 November 2020. The applicant has requested for a fully dressed judgment and this is it. The applicant together with his co-accused were charged with and convicted on three counts as follows – Count 1 related to a contravention of s 45(1)(b) as read with s 45(2) of the Parks and Wildlife Act, [Chapter 20:14]” Possession or sale of specially protected animal.” The details of the charge were that on 25 October 2019 and at Chikura Village, Chief Chundu, Karoi. the applicant and his co-accused were found in possession of a 6 metre python which is a protected animal under the Act. Count 2 related to a contravention of s 82(1)(a) of the Parks & Wildlife General Regulations SI 362/90 as read with s 128(1)(b) of the Parks & Wildlife Act, [Chapter 20:14]. Found in possession of elephant ivory without a permit.” The details were that on the same date and place, the applicant and his co-accused were found in unlawful possession of two elephant tusks weighting 5 kilograms without a permit as required under the quoted Act. Count 3 related to a contravention of s 38(1)(a)(b) of the Parks & Wildlife Act, [Chapter 20:14]. “Hunt or removal of animals or animal products from a Safari Area.” The details were that on the same date and place in counts 1 and 2, the applicant and his co- accused were found in possession of a leopard skin in contravention of the Act. The applicant pleaded not guilty to the charges but was convicted after a contested trial on the three charges. In count I, the applicant was sentenced to 3 years imprisonment HH 303-21 B 1880/20 CRB KAR 1710/19 CA 832/19 with one suspended on condition of future good behaviour leaving an effective 2 years imprisonment. In count 2, no special circumstances to avoid the minimum mandatory sentence were found to be established. The applicant was sentenced to 9 years imprisonment. In count 3, the applicant was sentenced to pay a fine of $1000 in default of payment, to serve 30 days imprisonment. The applicant and his co-accused noted an appeal on 18 December 2020 against both conviction and sentence. The grounds of appeal against conviction were stated as follows- 1. The learned magistrate erred in concluding that the State had proved its case beyond a reasonable doubt notwithstanding that the evidence that was placed before him did not reach the threshold of proof beyond a reasonable doubt in respect of both the physical and mental elements of possession of both the python trophy and the ivory. 2. The a quo misdirected itself in convicting the Appellants when in actual fact the Appellants has proffered a reasonable and probable explanation in their defence that was reasonably and probably true, which explanation was not proved to be false beyond reasonable doubt. 3. The learned magistrate erred and misdirected himself in failing to analyse the credibility of all the State witnesses given that their testimonies differed materially and were riddled with several inconsistencies and improbabilities on an extent it was extremely dangerous to rely on such evidence to convict the appellants. 4. The court a quo erred and misdirected itself in convicting the appellants on the basis of circumstantial evidence notwithstanding that the inference drawn was not consistent with any proved facts whatsoever, and further that the circumstances of the case did not point to only one reasonable inference.” Against sentence the grounds of appeal were stated as follows: “GROUNDS OF APPEAL AGAINST SENTENCE 5. 6. 7. In the alternative, assuming this court were to uphold the conviction it will be argued that the court a quo erred and misdirected itself in imposing harsh sentences which raises shock in its failure to strike a delicate balance between the conflicting interests of the society at large and those of the appellants and playing around the mitigation and aggravating factors which all culminated in a miscarriage of justice and warrants this court to interfere with the sentence in terms of the law. The learned magistrate misdirected himself by failing to consider that the totality of evidence laid out before him a regards possession of ivory constituted special circumstances moreso the facts revealed that the police trap had promoted the commission of the offence by the appellants who would not otherwise have committed the offence, and further that second appellant’s moral blameworthiness had been reduced by the fact that he was a mere unsophisticated rural dweller. The learned magistrate having found appellants guilty on two counts, erred in failing to order both sentences to run concurrently to the other, thereby imposing a sentence that is not just and fair in the circumstances.” HH 303-21 B 1880/20 CRB KAR 1710/19 CA 832/19 The applicant followed upon the filing of the appeal by filing this application for his release on bail pending the determination of the appeal. The approach of the court to such an application is that the court considers the following factors: “(a) the likelihood of the applicant to abscond. (b) (c) (d) the prospects of success of the appeal the likely delay before the appeal is heard right of the applicant to individual liberty. See S v Dzawo 1998 (1) ZLR 536 (S). The applicant in terms of s 115C(2)(b) of the Criminal Procedure & Evidence Act [Chapter 9:07] bears the onus to show on a balance of probabilities that it is in the interests of justice to grant the applicant bail pending appeal. In considering the factors aforesaid, they are considered cumulatively and none of them is singularly determinant of the application. In practise however, the tendency is to stress the prospect of success. There is good justification to place more weight on this factor because a person who enjoys prospects of success is unlikely to abscond and will in all probability stick around. On the other hand, where the prospects of success are slim or non- existent, releasing an applicant in such circumstances especially in serious cases will be ill advised as such applicant will in all probability abscond to avoid long detention. The facts of the cases alleged by the State were that the applicant and his co-accused were unemployed male adults. The applicant was ordinarily resident at number 112 Claudia Karoi whilst his co-accused was resident in Chikura village, Chief Chundu Karoi. The two were alleged to be friends. The arrest of both the applicant and his co-accused happened on25 October 2019 around 10.30 p.m. in an ambush. Police had received information around 5.00 p.m. of the same date about the applicant and his co-accused being in possession of a python skin which they were selling. Police pretended to be buyers and arrested the applicant and his co-accused whilst in unlawful possession of 6 metres of python skin. In the same ambush police pretended to be buyers of elephant tusks which they had been informed were being sold by the applicants and his co-accused. Upon arrest the applicant and his co-accused were found in unlawful possession of 5 kg of elephant tusks. The police also recovered a leopard skin from the possession of the applicants. HH 303-21 B 1880/20 CRB KAR 1710/19 CA 832/19 The applicants were legally represented at their trial. In their jointly written defence outline, they averred that the applicant was approached by one adult called Chris Kusakudza who was in search of a leopard skin which was required by Chief Nemakonde. The said Chris Kusakadza promised to pay the applicant a “facilitation fee” of ZWL$5000 if the applicant managed to find a “buyer” (sic). The applicant warned up to the idea of earning the promised fee because he saw it as opportunity to help himself from the economic hardships which the applicant was facing as an unemployed person. The applicant then approached his friend the applicant’s co-accused and sold him the deal. The applicant travelled from Karoi the co- accused’s home in Chikura Village and sold him the deal. The applicant travelled to the co- accused’s rural home in the company of the intending buyer, Chris Kusakadza. The co- accused warmed up to the deal and advised that he knew some persons who were known hunters in the area. The three of them, namely, the applicant, his co-accused and Chris then proceeded to the local shopping centre. The applicant’s co-accused then introduced the intending buyer, Chris to three male adults who were said to be known hunters. The applicant averred that Chris entered into negotiations with the hunters who had been linked to him by the applicant’s co-accused. The applicant averred that he was not party to any sale negotiations. Chris then promised the applicant that a Chief’s policeman would bring the facilitation fee on the following day. The applicant further averred that his accomplice and Chris met the following day at the shopping centre. The applicant and his accomplice were arrested on the following day whilst in the company of Chris. The “policemen” whom the applicant believed to be led by the Chief’s policemen came to where the applicant, his co-accused and Chris were drinking beer and asked them to jump into the car which they did. The team then arrested the applicant and the co-accused. The applicant and his accomplice were then placed under arrest. They were only accused and charged for the offence in casu on arrival at the police station. It was at the police station that they were for the 1st time shown the exhibits involved in each of the three charges. The applicant in essence therefore, denied being in physical possession at any time of the subject matter of the charges in each count. The applicant averred that he was a victim of circumstances because he realized later that he had been trapped and “duped”. The state led evidence from the arresting police details. From a reading of their evidence it was common cause that the applicant, his co-accused and the witnesses met under HH 303-21 B 1880/20 CRB KAR 1710/19 CA 832/19 circumstances wherein the only point of material departure was whether the applicant and his co-accused were in possession of the exhibit subject of the three counts. Possession of the exhibits was the major point of differences in evidence in that the applicant claimed to have been merely a facilitator who through his co-accused, linked the police informer to hunters who ultimately escaped and were not caught. The applicant’s evidence was that as facilitator, he stood to get a consideration of $500-00 if the informer Chris was able to get a leopard skin. The applicant on the evidence of police arresting details was however at the scene of the alleged recovery of the exhibits although the applicant stated that he saw the exhibits at the police station for the first time together with the elephant tasks and python skin. The evidence of the arresting details was that it was the applicant who had possession of the exhibits in all the three counts. It was the applicant who was the party that negotiated with the arresting details for the sale of the exhibits. Police acted on information from their informer who pretended to the applicant that the informer was an agent of Chief Nemakonde who wanted a leopard skin. The police evidence was clear and coherent. Whatever differences there could have been related to matters of detail of movements during meetings with the applicant and therefore were of no great moment. It was not disputed that the parties were together at the material time. All that the magistrate had to decide was who to believe between the applicant and the police details in regard to whether it was the applicant who was in possession of the exhibits or the police planted themon the applicant at the police station before charging the applicant for unlawful possession of the same. In the judgment, the magistrate summarized the evidence of all three police details who arrested the applicant and his co-accused. The magistrate noted that there was a slight deviation between the evidence of two of the witnesses with that of the third witness. The magistrate commented that the deviations were not of such magnitude as to affect the credibility of the evidence. It was a finding of fact by the magistrate that the police only arrested the applicant and the co-accused after police had physically seen the exhibits in question. On p 5 of the judgment, the magistrate stated as follows: “The million dollar question is whether or not the state managed to prove beyond reasonable doubt that the accused committed the offences as charged. The defence counsel answered this question in his closing submissions. I will, however answer this question in the affirmative for the following reasons. It is apparently clear from the testimony, that the accused persons brought the items to the state witness, even in their defence outline, the accused persons do not place themselves far away from the scene. They, however sought to HH 303-21 B 1880/20 CRB KAR 1710/19 CA 832/19 only associate themselves to the leopard skin not to all the items. With all due respect, this is merely an attempt by the accused persons to escape criminal liability. I have no hesitation to conclude that the accused persons are the ones who brought python skin, leopard skin and ivory. There is nothing to suggest that the state witness might have a motive to falsely implicate the accused persons. They hereby testified on what the (sic) perceived that the accused persons indeed brought the items in question. The items in question were brought to court as exhibits.” The magistrate also dealt with the question of possession. He reasoned that the applicant and his co-accused had the intention to possess the items because they could not have offered to sell what they did not possess. What is however clear from the judgment is that the magistrate believed the evidence of state witnesses and disbelieved the evidence of the applicant and his co-accused. The magistrate was justified to believe the state witness’ evidence because it accorded with probabilities. The police details would not have spent the greater part of the night in the company of the applicant and driving from one point to another if there were no deals being struck to buy and sell the items. There was no justification or plausible explanation on why the police would have spent time and resources only to pick up an innocent person in the name of the appellant and drive him all the way to the police where exhibits were placed before him and ownership and possession thereof attributed to the applicant. The applicant’s explanation of events was so incoherent and not plausible as to be decidedly false. He was from the evidence, the main actor who led the way and the sale negotiations. The grounds of appeal do not have prospects of success. The first ground of appeal is too generalized and vague and embarrassing. It lacks specificity. The explanation of the applicant of his involvement as noted was improbable and was properly rejected. In regard to inconsistences in the evidence of state witness, the magistrate found the inconsistences to be of no great moment or material. The last ground of appeal avers that the magistrate wrongly convicted the applicant on circumstantial evidence. This is incorrect. The magistrate believed state witnesses’ evidence that the applicant with his accomplice offered the exhibits for sale to police in an arranged trap. This is not circumstantial evidence but direct evidence proven by oral testimony of what happened. There is therefore no prospect of that ground of appeal succeeding. It was ill conceived. It followed that there were no prospects of success against conviction. In relation to sentence, I considered that the applicant had some prospect of success. In particular the seventh ground of appeal invites meaningful debate. The applicant will seek HH 303-21 B 1880/20 CRB KAR 1710/19 CA 832/19 to argue that the magistrate should have ordered the sentences in the first and second counts to run concurrently. Such approach would result in applicant serving only 9 years imprisonment, being the sentence in the second count. The offences resulted from only one course of conduct. Charges were split because the possession of each individual animal trophy product is separately outlined. Therefore, whilst it was proper to individually charge the applicant in regard to each trophy and to impose individual sentences for each charge, there was room to consider ordering that the sentences be served concurrently. There is therefore a reasonable chance that the appeal court may be persuaded to agree on the concurrent sentence argument and order that the effective imprisonment term in count should run concurrently with the one in count two. Notwithstanding the finding of prospects of success on appeal on sentence, it was nonetheless my considered view that the applicant would still serve the mandatory nine years imprisonment at least. There was no justification to release the applicant on bail in the light of the fact that jail time of at least nine years was a foregone or a given. Hence, bail pending appeal was denied. National Prosecuting Authority, State legal representative