HH CA 143/13 X REF CRB GODFREY KONDO and FENIA AISUM versus THE STATE

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1 1 GODFREY KONDO and FENIA AISUM versus THE STATE HIGH COURT OF ZIMBABWE HUNGWE AND BERE JJ HARARE 31 MARCH 2015 AND 7 OCTOBER 2015 Criminal Appeal J. Samukange, for the appellant E. Makoto, for the respondent BERE J: This appeal follows the conviction and sentence of the appellants in the lower court on a charge of contravening section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Upon conviction the first appellant was sentenced to 5 years imprisonment of which 1 year was suspended for 5 years on the usual condition of future good behaviour with a further 2 year period suspended on condition he restitutes the complainant in the sum of US$ within a specified time. The second appellant was sentenced to 3 years imprisonment of which 1 year was suspended for 5 years on condition of future good conduct, with a further 2 year period suspended on condition she pays restitution of US$ to the complainant within a specified period. Both appellants are senior immigration officers who were alleged to have stolen the complainant s cash amounting to US$ and an assortment of jewellery whose value was said to be US$ The theft was alleged to have occurred at a time when the appellants had visited the complainant s residence to carry out their routine work.

2 2 Aggrieved by their conviction and sentence the appellants noted an appeal to this court against both conviction and sentence raising the following grounds for appeal: It was alleged by the appellants that the court a quo erred and misdirected itself in totally failing to consider that the witness, being closely connected there was a possibility of collusion and malice in bringing the allegations against the appellants. It was further contended that the court a quo erred in failing to appreciate the several inconsistencies in the testimony given by the four state witnesses. It was also contended that the court a quo erred and misdirected itself by failing to appreciate that the lapse of time between the alleged theft and the time a report was eventually made to the police demonstrated that there was no offence which the appellants had committed, and that it was highly unlikely that the complainant s legal practitioner would have advised the complainant to delay the report as alleged by the complainant. It was further placed on record on behalf of the appellants that the allegedly stolen jewellery and its value were never put in evidence. Finally the lower court was also criticized for failing to accept the appellants version regarding the non-existence of the allegedly stolen money and the jewellery as being possibly true in substance which benefit of doubt they ought to have been granted. All in all the import of the appellants appeal was that they were convicted against the weight of evidence which screamed for their acquittal. Mr E. Makoto for the respondent urged the court to dismiss the appeal. He saw nothing amiss with the conviction. I will now proceed to analyse the evidence that was placed before the court a quo. In convicting the appellants the learned magistrate read the evidence and made a specific finding that the four state witnesses evidence was consistent both in their evidence-in-chief and

3 3 under cross-examination and that she was satisfied that the evidence had been sufficiently corroborated to warrant a conviction of the appellants. It will be noted later in this judgment that there was very little analysis done by the magistrate about the evidence given by the appellants both in chief and in cross-examination. The learned magistrate chose to believe what the complainants testified at the expense of the appellants evidence without any justification. It is clear from a simple reading of the court a quo s judgment that the trial magistrate was largely influenced by the alleged credibility of the four witnesses who appeared before her and testified against the appellants. It is the undisputed legal position deriving from a rich pedigree of precedent that the appeal court must be slow to interfere with issues of credibility of witnesses as captured by a trial court because of the strategic position of that court. The appeal court can only attempt to depart from this time honoured approach if there are compelling reasons for it to do so. ZIYAMBI JA re-stated this position of our law in the following: It is trite in our law that an appellate court will not interfere with findings of fact made by a trial court and which are based on the credibility of witnesses. The reason for this is that the trial court is in a better position to assess the witnesses from its vantage point of having seen and heard them. See Hughes v Graniteside (Pvt) Ltd S The exception to this rule is where there has been a misdirection or a mistake of fact or where the basis the court a quo reached its decision was wrong 1. See also S v Katsiru 2 per BHUNU J. It is with this legal position of our law that I must now try to look at the evidence whose credibility and believability the learned magistrate found to be beyond reproach. 1. S (1) ZLR 364 (H)

4 4 It will be noted that both the charge sheet and the state outline spoke to the theft of US$25 000, 10 small gold bangles, 2 large gold bangles, 1 gold necklace and a pair of gold earrings. The record of proceedings refers to M. Shabbir as the first state witness. The accepted practice is to state or capture the full names of the witnesses who testify. However, this matter does not centre on this minor omission on the part of the court a quo. The record of proceedings shows that despite having created the impression that the witness had left US$ in the custody of his son, when pushed under cross-examination to explain how he had acquired the money, he stated that on 29 th of May his son and his family had brought US$6 000, on the 20 th May his son brought an additional $4 000 and that $ had been wired via Western Union making a total of $ Throughout his evidence the 1 st witness was not able to account for the other $5 000 in order to reach the threshold of $25 000,00 in the indictment. See record page 13. All this revelation came not in his evidence-in-chief but under cross-examination. Later, in his evidence under cross-examination (again not evidence-in-chief), the 1 st witness shifted his explanation and alleged that he had in fact brought the money from Pakistan in November How this could have happened when in fact the money had been stolen on 31 October 2012 remains a mystery. See record pages 17 and 18. In addition to the alleged theft of $ whose existence was characterised by contradictory evidence by the 1 st state witness, the charge sheet also made reference to the appellants having stolen 10 small gold bangles, 2 large gold bangles, gold necklace and a pair of gold earrings. In giving his evidence-in-chief the 1 st witness did not give evidence on jewellery. It was only when he was being cross-examined that he attempted to give a breakdown of the jewellery.

5 5 The witness testified of 16 bangles as opposed to a total of 12 bangles in the charge sheet. (See record page 19). No attempt was made to lead evidence on the value of the jewellery. Even as I write this judgment I am unable to tell whether the 1 st witness was running Gold Enterprises Company (record page 2) or Boodle Enterprises (record page 6) because of the inconsistencies that characterised his testimony on such insignificant issues. More startling contradictions were to follow in the proceedings as to who the owner of the jewellery was. Whereas the 1 st witness stated that the jewellery belonged to his wife, the 2 nd state witness s evidence was to the effect that the jewellery belonged to his own wife. Realising that he had straddled in his explanation he changed and said the jewellery in fact belonged to his mother. See record pages 23 and 26. The following questions carry the inconsistencies alluded to: Q What was in the lunch box? A My wife s jewellery. Pg 23 Later under further cross-examination the following question and answer was recorded: Q Why was the jewellery at your house? A It is my mother s who was in Pakistan. Compare the above contradictory explanations on the ownership of the jewellery with the evidence of the maid N. Mupesi who said the jewellery was in fact for the daughter of the complainant, the 1 st witness. See record p 49 There were even more startling inconsistencies in the evidence of the 1 st and 2 nd witnesses including that of the 3 rd witness H Mahomed. The three witnesses could not agree on whether or not the lunch box had a lid or not. The 1 st state witness testified that the lunch box had no lid (record page 8 line 7). The 2 nd state witness Z Shabbir spoke of having opened the lid of the same lunch box in order to remove passports from therein. H Mahomed the 3 rd witness said the lunch box had no top cover or lid.

6 6 Even more puzzling is the suggestion by the maid that despite her being barely less than 2 metres away from the appellants (record page 60 being the uncontroverted testimony by the first appellant Godfrey Kondo), she could not tell what one of the appellants was holding. But the maid was quick to realise the folly of her testimony and quickly moved to align her evidence with that of the rest of the witnesses by suddenly remembering that the item that she was referring to was in fact the popular lunch box. The record of proceedings shows clearly that the witnesses were feeding the court with rehearsed evidence and there is a good reason why in my mind this was so as I will deal with this later in this judgment. The 1 st witness testified that he telephoned his legal practitioner whose name he did not know despite having consistently relied on that lawyer and having stayed in this country for 7 years. Equally puzzling in my view is why if indeed the appellants had stolen such a large sum of money and jewellery, it took two weeks to report that matter when the complainant s son knew what he was supposed to do in the face of any crime of such nature being committed. It is equally amazing that these witnesses would want the court to believe that their lawyer caused them to delay reporting the matter to the police. Faced with a case characterised with such inconsistencies it is difficult to justify the factual findings of the court a quo. It is equally perturbing that the learned magistrate had the guts to dismiss the simple explanation given by the appellants that the Shabbir family was merely being vindictive and malicious in laying these theft allegations against them because of the immigration officers interaction with them. One need not go further than the remarks made by the 1 st state witness when he opened his evidence-in-chief. The record shows that the 1 st witness was bitter that the appellants had

7 7 just entered his residence without permission from his son on the day in question and that this was not the first time by the appellants in making their unannounced visits to his homestead. The witness said on one such occasion the appellants or members from immigration department had jumped over his brother s gate in the evening. It was also evident from the record that as a result of the investigative work of the appellants, the complainant s uncle had been deported from this country. One does not need further evidence to appreciate why the Shabbirs as a family felt that the appellants were up to disturbing their peace. It is only natural that the nature of the appellants duties caused a serious rift between them and the Shabbirs. That the appellants would end up on a collision course with the Shabbirs was inevitable. All this should have been at the back of the learned magistrate s mind when she dealt with this case. If this had been the case, the learned magistrate would have approached this matter with heightened caution as opposed to blindly and religiously accept everything that was said in court by the complainant and his family members. The appellants as well as their witness gave a detailed background of their involvement with the Shabbir family and my firm view is that if the story told by the appellants and their witness had been looked at objectively or with an unbiased mind it would have been very easy for the learned magistrate to have understood why the Shabbirs had a motive to concoct these very serious allegations against the appellants. It is clear that the appellants were never popular with the Shabbir family because of the nature of their duties which included among other things carrying out investigations involving suspected human trafficking at the Shabbirs residence. Indeed, when the first appellant Godfrey Kondo was specifically asked by the state counsel whether there was any reason from the complainant and his son to make up these allegations against them he retorted as follows: There is a time the father and Zohaib wanted to bring out the issue of their uncle who was deported. He was an illegal immigrant who had no permit to remain in Zimbabwe. The issue (allegations) has been brought up as a matter of revenge and bitterness. See record page 66 last paragraph

8 8 she responded: When state counsel paused the same question to the second appellant F. Aisan this is how 76 They were all talking about their deported cousin and this is to fix us. See record page Both appellants denied the allegations of theft put against them and their witness L. Chakauya told the court that when the Shabbirs were taken to the immigration department none of them made allegations of theft against the appellants. It is extremely difficult to imagine how else the appellants would have prosecuted their case to demonstrate their innocence. The story or explanation they gave in the court a quo was rejected by the learned magistrate for no stated reason. The record of proceedings shows that their evidence was not analysed at all. This is a poor approach in criminal proceedings. Sadly, I am forced to restate the very basic or elementary approach to be adopted in criminal proceedings. This approach has been religiously followed in our criminal courts as far back as 1937 in the much celebrated case of Rex v Difford 3 where Watermeyer suncitly put it in the following words: It is not disputed on behalf of the defence that in the absence of some explanation the court would be entitled to convict the accused. It is not a question of throwing any onus on the accused but in these circumstances it would be a conclusion which the court could draw if no explanation were given. It is equally clear that no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation even if that explanation be 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 reasonability of his explanation being true, then he is entitled to an acquittal This same legal position was further re-affirmed by DAVIS AJA in the case of Rex v M 4 in the following words: AD 370 at AD 1023 at 1027

9 9 and, I repeat, the court does not have to believe the defence story, still less has it to believe it in all its details, it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true. Counsel for the appellant Mr J. Samukange in his submissions referred us to the case of S v Olawale 5 where MHLANTLA JA remarked as follows: Thus in evaluating the evidence against the appellant one must look at the reliability and credibility of the witnesses and consider if any of them had a motive to falsely implicate the appellant and further look at the probabilities of the state version. 5 With this in mind I come now to consider the appellants version. Was there a motive to lie against the appellants on the part of the complainants? The appellants said there was and the evidence suggests in my view that indeed there was a motive to concoct these allegations in order to fix the appellants. I must conclude this judgment by saying that before a court decides to reject a story told by an accused, there must be an attempt made to analyse or critically assess that story against the other evidence. A trial court cannot just from the comfort of its chambers decide to reject one of the versions in preference of the other without analyzing such evidence. It is a dereliction of duty and an act of violence against the elementary rules of procedure. It is clear in this case that the factual findings made by the learned magistrate are not sustainable. The appellants were convicted against the weight of evidence and they must be acquitted. The appellants are accordingly found not guilty and acquitted. Hungwe J I agree Venturas and Samukange, appellant s legal practitioners National Prosecuting Authority, respondent s legal practitioners (1) AII SA 451 SCA