S v Funganjera (CRB 69 of 2016; HH 192 of 2016) [2016] ZWHHC 192 (11 March 2016)

1 HH 192/16 CRB 69/16 THE STATE versus CHRISTOPHER FUNGANJERA HIGH COURT OF ZIMBABWE ZHOU J HARARE, 8, 9, 10 & 11 March 2016 Trial – within – a – trial B. Murevanhema, for the State Miss R. Chibaya, for the accused ZHOU J: The accused person is appearing before this court charged with murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is being alleged that on 29 September 2014 and along 19th Road, Glen View 3, Harare, the accused person unlawfully and intentionally caused the death of Stephen Chikanda by stabbing him using a knife three times on the chest, two times on the back, two times on the forearm and once on the left wrist. At the commencement of the trial the accused person, through his counsel, moved an amendment to his defence outline by inserting statements challenging the admissibility of indications which were video-recorded and subsequently transcribed, as well as the Form headed “Indications and/or statements made at scenes”. The basis of the objection to the production of the evidence of the indications, as outlined in the defence outline, was that the indications “were made as a result of a thorough beating by the police, and therefore induced by undue influence. The accused will state that he was subjected to a prolonged physical assault by the investigating officer.” In view of the objection to the production of the evidence of the indications the court, as it is enjoined to do, held a trial – within – a – trial in order to determine the admissibility of that evidence. In seeking to prove that the indications were made by the accused person freely and voluntarily and without undue influence being brought to bear upon him the prosecution led evidence from four witnesses. These were Nyasha Makanyisa, Kudzai Learnmore Mafusire, HH 192/16 CRB 69/16 Trymore Chimbambo and Hector Rupiya. Nyasha Makanyisa is a Detective Constable in the Zimbabwe Republic Police based at the Criminal Investigations Department’s Homicide section. His testimony was that on 2 October 2014 in the afternoon he was assigned to by the Officer-in-Charge CID Homicide to conduct indications in which the accused person would be involved. He booked the accused person out of the police cells and took him to his office. He then constituted a team of detectives who would assist him in the conducting of the indications. In addition to himself, the other detectives in the team were Detective Sergeant Muuya who was to drive the motor vehicle to be used during the indications, Detective Sergeants Mangwuwa and JanzaLimodzi were to provide security, while Detective Constable Rupiya was to be the interpreter. There was also Detective Constable Chimbambo who was to record the proceedings using a video camera. He administered a Warned and Cautioned Statement, which is the preamble of the form which was used to the accused person in respect of the indications while he was in office number 27. He explained to the accused person that he was not obliged to participate in the indications unless he was willing to freely and voluntarily take part. He stated that he advised the accused person of his right to legal representation but the accused person advised that he had no lawyer to represent him. He also introduced the other members of the team whose names have been stated above. He availed to the accused person a form which the accused person signed to confirm his willingness to participate in the indications and that he was making the indications freely and voluntarily. The accused person was also to sign, and did sign, the same form after completion of the indications to acknowledge that the indications were undertaken by him freely and voluntarily. The witness spoke to the accused person in the English language while Rupiya translated from English to Shona and vice versa. The accused person then gave him directions to 19th Road in Glen View 3. He stated that the accused person was secured in handcuffs and leg-irons. The accused person led the team to 19th Road, Glen View 3, Harare, where he stated that an altercation between him and the deceased had ensued as a consequence of which he stabbed the deceased. From that road the accused person then led the witness and the other officers to his residence, 4260 Glen View 3, Harare. At his residence the accused person indicated to the witness and the other officers a well in which he said that he had thrown the clothes which he had been wearing at the time that he had an altercation with and stabbed the deceased. A t-shirt and a pair of short trousers which were blood stained were recovered and retrieved from the well using a rope which had a hook. The witness denied that the accused person was assaulted by him or any of the other officers. HH 192/16 CRB 69/16 He stated that the investigating officer, Mafusire, was not part of the team attending to the accused’s indications, but only joined them in the yard of the police station when they were leaving as he had some other business to attend to. Kudzanai Learnmore Mafusire is the investigating officer. He first met the accused person on 2 October 2014 when the accused was brought to the CID offices. He recorded a warned and cautioned statement from the accused on that same day. He stated that he was not involved in the indications but merely boarded the motor vehicle which was going for the indications because he intended to go to the Magistrates Court using that vehicle after the indications to have a warrant for the further detention of the accused person issued as well as to have the accused’s warned and cautioned statement confirmed. He never got out of the motor vehicle when they got to the scene. Even when they went to the accused’s residence he remained outside the gate in the motor vehicle while those officers who were involved in the indications went inside the premises with the accused person. He was only handed the t-shirt and pair of shorts which were recovered during the indications when they were back at their CID offices. He denied ever assaulting or torturing the accused person. He was given a transcript of the indications by Detective Sergeant Makanyisa who had transcribed the video indications. He stated that the Magistrate declined to confirm the warned and cautioned statement which he had recorded from the accused person. Trymore Chimbambo was the officer who was assigned to record the indications by the accused person on 2 October 2014. He started recording the indications from Harare Central Police Station. The witness used a video camera. He testified that when they got to Glen View 3 the accused person indicated the place where he stabbed the deceased as well as a dry well in which he had thrown his clothes. He put the video recordings on a DVD which he handed over to the Officer-in-Charge. He played the video recording on television in court. The last witness for the prosecution was Hector Rupiya who was assigned to be the interpreter during the indications. He testified that Detective Constable Makanyisa read out the preamble in terms of which he warned the accused person about the indications, and also informed the accused person of his rights. He appended his signature on the document headed “Indications and/or Statements Made at Scenes” as a witness. That same document was signed by the accused and Makanyisa. His evidence as regards being directed to Glen View and 19th Road as well as what took place there was largely similar to that of the other witnesses who were involved with the indications, save that he stated that Mafusire was HH 192/16 CRB 69/16 seated at the back of the motor vehicle during the time that they went for the indications. He stated that Mafusire joined them in the motor vehicle when the motor vehicle was leaving Harare Central Police Station. The accused person gave evidence himself and called no other witness. His full names are Christopher Tafadzwa Pfunganjera. His evidence was that he was