THE State V Godfrey Zimbandi & Another

### Preamble
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HCC 12/25
HCCR 590/24
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THE STATE

Versus

GODFREY ZIMBANDI

And

ASHWELL KARONGA

HIGH COURT OF ZIMBABWE

MUZOFA & BACHI-MZAWAZI JJ

CHINHOYI, 25 February 2025

Criminal Appeal

F. Murisi, for the appellants

N. A. Sibesha, for the respondent

MUZOFA J: It is now trite that a trial within a trial is a condition precedent to the production of an unconfirmed statement in criminal proceedings. Where the only evidence before a court is the statement made by the accused and the statement is objectionable, then the court has no option but to acquit the accused. In this case, despite the appellant’s defence outline wherein the appellants alleged that they were assaulted and forced to make indications. Despite that, the Court a quo accepted the statements and convicted the appellants based on the indications. This was a misdirection that vitiates the proceedings. The appeal is merited.

On the 9th of May 2024 both appellants were convicted on 2 counts of stock theft in contravention of s114 of the Criminal Law 9Codification and Reform) Act [Chapter 9:23]. Each appellant was sentenced to 18 years imprisonment.

The factual background was largely not in dispute. On the 4th of December 2024 the appellants were abode a Honda Fit registration number AFS 8760 which was travelling along the Norton Harare Road. There were four people in the car. Along the way the Police had mounted a roadblock looking for a stolen motor vehicle. When the driver of the Honda Fit got to the road block, he turned and attempted to flee from the police.

The police pursued the motor vehicle, it stopped after police gunshots. Two occupants bolted out and the police pursued them. They apprehended one and the other one successfully evaded arrest. On being searched, it turned out that the car boot was full of fresh beef packed in 50kg sacks. Also in the car boot were four cow heads and cow hooves. One of the occupants escaped.

Two complainants who lived in the Zvimba area had penned their beasts on the 3rd of December and found them missing in the morning of the 4th of December 2024 identified the cow heads as that of their missing beasts. The appellants thereafter made indications how they committed the offence.

Before the trial court the State led evidence from the two complainants who established that the offence was committed. Their evidence also confirmed that the appellants led the police to their homesteads and made indications explaining how they committed the offences. The investigating officer also gave evidence confirming that the appellants made indications freely and voluntarily.

The accused, who were not legally represented by then, denied the offences. In their defence outlines they indicated that they were innocent passengers travelling to Harare. They did not know that the car boot was full of meat. They challenged the indications that they were forced to make them. They were not made freely and voluntarily.

In its judgment the court dismissed the appellants’ defence. It reasoned, without any legal basis, that the appellant could not have made indications at the complainants’ homestead unless they were aware of the commission of the offence.

Dissatisfied by the findings they noted this appeal. Two issues commend themselves for determination from the grounds of appeal against conviction;

Whether the Court a quo misdirected itself in accepting the indications in the absence of a trial within a trial.

Whether there were proved facts before the court a quo to draw inferences from.

Ad Sentence

Whether the court aquo’s explanation of special circumstances was inadequate.

The Indications

Mr Murisi’s submissions were brief and to the point. There was nothing much to add since the position of the law on challenged statements is settled. It was submitted that the court a quo misdirected itself by relying on the indications in the absence of a trial within a trial. The appellants had challenged the admissibility of the said indications.

The State initially filed a consent to the appeal. On the date of hearing after some engagement with the court, Mr Sibesha changed and opposed the appeal. He submitted that despite the improperly accepted indications there was evidence aliunde that the appellants actually stole the beasts.

We have no doubt that the court a quo misdirected itself in such an elementary issue. The appellants had challenged the indications in their defence outlines. Surprisingly, when the investigating officer led evidence on the indications it allowed the evidence, and went on to rely on it in its judgment.

A statement by an accused is admissible where it is proved to have been made freely and voluntarily. The same rules that govern the admissibility of written statements, or tape-recorded statements, statements transmitted in code or by radio, statements in sign language ‘by a person who is deaf and dumb’ govern the admissibility of indications. A police officer must not give evidence of such statements without first satisfying the rules about admissibility (see S v Nkomo 1989 (3) ZLR 117 (SC).

The onus is on the State to prove that the statement was freely and voluntarily made. In this case the State must have proceeded into a trial within a trial and the court was to make a ruling on the mini trial. In the absence of a trial within a trial the indications were inadmissible. See S v Chinembiri H 272/24, S v Walusa HH 677/20 referred to by appellant. They were inadmissible. The Court a quo misdirected itself.

The first ground of appeal succeeds.

Whether there were proved facts to draw inferences from

The issue really is whether there was circumstantial evidence to prove a case against the appellants. This is the evidence aliunde that the State decided to rely on before this Court.

The law on circumstantial evidence is well documented and has continued to be referred and applied in our jurisdiction see S v Mhunza HH 220/23. It is about drawing inferences where there is indirect evidence that suggests a fact through inference rather than directly proving it. Before drawing such inferences two essential elements must be met. There must be proved facts and the inference sought to be drawn must be the only reasonable inference. If there is a possible, equally reasonable inference that can be drawn then the one sought to be drawn cannot be drawn. This is because another possibility exists.

We are persuaded that the following were the proved facts;

The appellants were in the motor vehicle that had beef and cow heads identified by the complainants.

The 2nd appellant tried to escape but was held down by the driver. It was unclear though from the evidence which one of the two appellants tried to escape.

The next question is whether the proved facts lead to one inference sought to be drawn. The answer is in the negative. It is not an offence to be in a motor vehicle with meat suspected to be from a stolen beast. It is not even a conclusive piece of evidence of guilt to try to escape from the police. At times it maybe sheer panic, fear and loss of mental compass to appreciate what is going on.

Our finding allows of no other order except to allow the appeal. It becomes unnecessary to address the grounds of appeal against sentence.

Accordingly, the following order is made:

The appeal is hereby upheld.

The verdict and sentence of the court a quo is set aside and substituted with the following:

“Not guilty and acquitted”

BACHI- MZAWAZI J Agrees.

Murisi & Associates, the appellant’s legal practitioners

National Prosecuting Authority, the State’s legal practitioners