Collen Chirema v The State

### Preamble
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HMA 44-19
CA 61/18
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COLLEN CHIREMA

vs

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE J & WAMAMBO J.

MASVINGO, 18TH September & 2nd October, 2019

Criminal Appeal

Ms M. Mandingwa for the appellant

T. Chikwati for the respondent

MAWADZE J:  	The court a quo in this matter was confronted with the fact that when the complainant was arrested at his business premises in Burma Valley, Mutare by CID details based at CID Mutare he had no injuries but when he later emerged from the CID offices he had been physically violated. The issue which the court a quo had to deal with was not only whether the complainant had been assaulted at CID offices Mutare but who had assaulted him.  The complainant implicated two CID details one Ndiudzei Magawa and the appellant Collen Chirema. It is therefore clear that what confronted the court a quo were factual issues rather than legal issues.

The appellant in the court a quo was the second accused in which he was jointly charged with a fellow CID detail Ndiudzei Magawa for assault as defined in s 89(1)(a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. They were both convicted after a full trial and each was sentenced to pay a fine of $700 or in default of payment 12 months imprisonment. In addition, 12 months imprisonment was suspended for each for 5 years on the usual conditions of good behaviour. Dissatisfied with both conviction and sentence the appellant appealed to this court.

At the commencement of the hearing of the appeal Ms Mandingwa for the appellant abandoned the grounds of appeal in respect of sentence and indicated that the appellant’s appeal was solely in respect of the conviction. Three grounds of appeal are raised and are couched as follows;

“A.	AGAINST CONVICTION

The appellant avers that the learned Magistrate erred and misdirected himself in convicting the appellant as he did. when in fact the complainant gave unsatisfactory evidence and created so many inconsistencies that he was not credible at all.

The appellant avers that the court a quo erred in convicting him when infact the State failed to prove the case beyond reasonable doubt when doubt was established in the manner in which he was identified.

The appellant avers that the court erred and misdirected itself when there was no evidence to corroborate the complainant’s allegations.”

The facts of this matter are that both the appellant and his co-accused in the court a quo Ndiudzei Magawa are members of ZRP attached to CID Property Section in Mutare. They were both aged 38 years old at the material time.

The 30-year-old complainant resides at Nyamakari farm, Burma Valley in Mutare where he runs a bottle store and grocery shop at Mazonwe business centre, Burma Valley, Mutare.

It is common cause that on 4 July 2017 at around 1500 hrs the complainant was arrested at his business premises by some CID details from Mutare Property Section who include appellant’s co-accused Ndiudzei Magawa but excluded the appellant. The complainant was arrested on suspicion of stealing some grocery items. He was taken to CID offices Property Section in Mutare in a motor vehicle for purposes of interrogation.

The complainant alleges that at CID offices in Mutare, Ndiudzei Magawa assaulted him on the head and face with open hands and fists. Thereafter complainant alleges that the appellant pulled the complainant’s t-shirt over his head, pinned him down and assaulted him on the back with an unknown object. As a result of the assault, complainant said he sustained a swollen upper lip, bruises all over the back, bleeding from his right ear and his hearing was impaired in both ears.

Both Ndiudzei Magawa and the appellant denied assaulting the appellant at all. While Ndiudzei Magawa confirmed that he is one of the police details who arrested the complainant at the business premises on 4 July 2017 on allegations of incitement to commit the offence of unlawful entry he vehemently denied assaulting him. Ndiudzei Magawa said after taking the complainant to CID offices in Mutare another CID detail took the complainant’s finger prints and that this complainant refused to sign for the finger prints and also denied the charges. According to Ndiudzei Magawa the complainant simply fabricated the assault allegations as he was simply bitter about his arrest. In other words, Ndiudzei Magawa is saying the complainant was never assaulted at all.

The appellant also denied assaulting the complainant. In fact, the appellant said he never took part in the arrest or the interrogation of the complainant although he was present in the CID office in which the appellant was interrogated. It is appellant’s contention that his implication in this matter is a question of mistaken identity or that complainant is wrongly implicating him.

It is not in dispute that prior to this day both Ndiudzei Magawa and the appellant were not known to the complainant.

As already explained this appeal raises factual rather than legal issues. In resolving the factual issues which inform the grounds of appeal a summary of the complainant’s evidence is in order.

Complainant Floyd George Saburi’s evidence

The complainant’s testimony is that upon his arrest by Ndiudzei Magawa and other CID details at his business premises he was advised that he was involved in a case of theft at Mega Supermarket at Matondo business centre. He was a suspect and believed to be selling the stolen goods at his shop. He denied the charge and implored the arresting Ndiudzei Magawa and other CID details to check for the stolen goods in his shop. He even offered to show them the receipts for all the goods in his shop. They were all not interested. Instead he was taken in a CID motor vehicle to CID Mutare. On the way to CID offices in Mutare he tried to call his legal practitioner but one CID detail Machiri confiscated his mobile phone telling him that he would not be allowed to call his legal practitioners. They arrived at CID offices in Mutare around 1700 hrs.

The complainant said as they went up the stairs at CID offices in Mutare Ndiudzei Magawa asked him why was disrespectful by wearing a woollen hat at the CID offices. Before he could answer he said Ndiudzei Magawa hit him on the left ear with an open hand and further slapped him on his lips as they were going upstairs. He said Ndiudzei Magawa again hit him on the lips with a clenched fist and shoved him upstairs.

Upon entering one of the offices the complainant said the door was closed and Ndiudzei Magawa continued to assault him on the head and face causing him to fall on to the floor. At that stage Ndiudzei Magawa briefly left the office.

The complainant said as he was seated on the floor Ndiudzei Magawa returned and assaulted him again in the face. He said other CID details in that officer cheered on Ndiudzei Magawa boasting that at CID offices suspects were subjected to assault. He said in that office there were five CID details and one civilian Fainos Mukombwa. The complainant said Ndiudzei Magawa retorted that complainant was stubborn and that as a result he, Ndiudzei Magawa, would hit the complainant until the complainant soils his pants.

Thereafter the complainant said another detail took him out of the office and took his finger prints. He was then brought back to the same office. There was now a female police officer in that office too who requested the complainant to sign a statement. The complainant said he read the statement which was to the effect that the complainant was admitting to being found in possession of stolen goods. As this was false the complainant naturally refused to sign it pointing out that it was untrue.

It is at this stage the complainant said the appellant who was hitherto in the same office joined in the assault. The complainant said the appellant remarked that the complainant could not tell CID details how to do their job. The appellant proceeded to hold the complainant and pulled the complainant’s t-shirt over his head. The complainant said he was then pinned down by the appellant and assaulted on his back with an unknown object pinned in that position. Severe pain was inflicted. His protestations of innocence were simply ignored.

The complainant said after about an hour at the CID offices around 1800 hrs he was detained in the cells. By then he had sustained a swollen face, was bleeding from the right ear and had been injured on his back.

According to the complainant he was detained in the cells from Monday and only taken to court on Thursday where he was granted bail pending trial.

The complainant said it was on the second day of his detention when he was taken from the cells and ordered to sign a statement implicating himself. Due to the suffering he had endured he obliged for fear of further assault. As he signed the statement a female police officer Mbira whom he knew came in the office and she was known to him. He said Mbira inquired why his face was swollen but CID details present interjected. The complainant said he could not tell Mbira what had happened due to fear. Instead he managed to ask for Mbira’s cellphone on the pretext of calling his family and advise them of his arrest. The female officer Mbira gave him her mobile phone but the CID details present warned him not to call any legal practitioner but his family members. The complainant said he nonetheless used that opportunity to call one Ngorima, a legal practitioner with Legal Aid Directorate as he pretended to be calling his family.

The complainant said Ngorima immediately came to the CID offices but the CID details initially barred him from seeing the complainant until the Officer in Charge of CID intervened. The complainant said he then narrated his ordeal to Ngorima who in turn called his colleague one Fusire. The two legal practitioners were shocked to see his injuries, being the swollen face and injuries at the back. As the two legal practitioners took photographs of his injuries with their mobile phones a CID detail Machiri realised it and confiscated the mobile cellphones. The legal practitioners nonetheless stood their ground insisting that a proper warned and cautioned statement be recorded in their presence. The CID details obliged.

The complainant said he was only given food on Wednesday which was brought by his legal practitioners. The next day on Thursday he was taken to court on initial remand and was granted bail pending trial. Thereafter his legal practitioner Fusire took him to ZRP Mutare Central where he made the report of the assault. He was sent for medical examination as he had developed hearing problems.

The complainant was subjected to lengthy cross examination by counsel for Ndiudzei Magawa and the one for the appellant but he maintained the thrust of his evidence. In fact, most of the questions put to him were irrelevant to issues to be resolved. A spirited attempt was made to show that the complainant’s viva voce evidence was at war with his recorded statement but the so called disparities in our assessment were not material issues. As the complainant explained it is the police who had recorded his summary of evidence. Further the complainant’s statement was never produced in the court a quo to enable us to fully appreciate the context of some of the questions asked and what the complainant said. A cursory and knit picking of issues was made in cross examination with reference to certain averments in the said statements.

As an example the complainant was asked why other CID details and the said civilian who allegedly witnessed the assault were not State witnesses. Such questions in our view are clearly misplaced as complainant is not dominus litis. As complainant explained it was foolhardy to expect fellow CID details to implicate their colleagues moreso as they approved of the assault by cheering on Ndiudzei Magawa as he battered the hapless complainant. Further, these other details took part in violating complainant’s rights by denying him food and immediate access to his legal practitioners. He said he was detained in cells despite his injuries. The complainant said the civilian person present refused to be a witness saying he was afraid of possible reprisals from CID officers.

The complainant denied that he had said he was assaulted the whole day but simply estimated the time as between 1700 hrs and 1800 hrs.

We also noted that counsel for appellant sought to discredit the complainant by hammering on the question of differences in dates complainants said he was arrested. Surely this is a futile exercise as it is not in dispute that complainant was arrested. The complainant was also clear that the assault took place on the very day he was arrested. An error in dates would not, in our view, change the price of rice of China as it were. Further the complainant was clear that the assault took place before he was lodged in the cells.

Whilst the complainant’s evidence is that he could not discount totally the assault by other CID details on his back as his head was covered with his t-shirt and pinned down by the appellant he was consistent that Ndiudzei Magawa and the appellant are the CID details he specifically identified.

Complainant made it clear that he would not have any reason to falsely incriminate Ndiudzei Magawa and appellant while exonerating other CID details. Indeed, we find that illogical for him to have exonerated deliberately some of his assailants.

Justin Tafadzwa Fusire, a legal practitioner who answered to the complainant’s distress call confirmed receiving a report of assault from the complainant. He observed that the complainant had injuries on his face, upper lip and bruises at the back.  Indeed, no useful questions were put to him.

Ndiudzei Magawa admitted interrogating the complainant inside CID offices but insisted no assault took place. Surprisingly Ndiudzei Magawa said injuries in complainant’s ears were not a result of any assault. Ndiudzei Magawa was hard pressed to find a reason why the complainant a total stranger would falsely incriminate him.

In relation to the appellant, the appellant admitted that complainant pointed at him as his assailant at CID offices. Appellant’s bone of contention is that a proper identification parade was not carried out. This is so despite that the appellant admitted being in the same room at CID offices where complainant was being interrogated for quite some time. The question of mistaken identity is difficult to appreciate.

We are now turn to the specific grounds of appeal but not necessarily in their order.

Was the complainant assaulted

It is simply futile for the appellant to deny that the complainant was assaulted. The medical report shows that the complainant was examined by a doctor on 7 July 2017 and noted the following injuries;

perforated right ear which was bleeding

swollen upper lip

extensive ecchymosis on the back which are bruises at the back

The injuries sustained by the complainant were clearly a result of assault and nothing else. The doctor said blunt severe force was used to inflict serious injuries causing loss of hearing in the right ear. Indeed, Justin Tafadzwa Fusire corroborated the complainant that he was injured. It is therefore incorrect to say there is no evidence which corroborated the complainant in relation to the assault.

Are there inconsistencies in complaint’s evidence?

We have summarised in sufficient detail the testimony of the complainant. There are clearly no material inconsistencies in complainant’s evidence. The complainant was clear as to where he was when the assault started, who assaulted him and the role played by each of the two CID details. We clearly find no material contradictions. Again it is difficult to appreciate why appellant would allege mistaken identity as if there are any factors which militated against identification of the appellant.

Our view is clearly that the assessment of the complainant’s evidence cannot be said to be illogical and bereft of common sense. Indeed, the assessment of the evidence of witnesses is the domain of the trial court. In case of S v Mlambo 1994 (2) ZLR 410 at 413 C – D, GUBBAY CJ said;

“The assessment of the credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an appellate court unless satisfied that it defies reason and common sense.”

Even in the absence of any corroborative evidence it would still have been proper for the court a quo to convict the appellant on the evidence of a single competent witness. In terms of s 269 of Criminal Act [Cap 9:07] it is competent for a court to return a verdict of guilty on the evidence of a single credible witness except in perjury or treason cases. See S v Tsvangirai & Ors 2003 (2) ZLR 88 (H); S v Magodo 2017 (1) ZLR 294 (H).

Did the State satisfy the required threshold of proof?

In our assessment the evidence of the complainant is clear. It matters not whether the complainant was arrested on 3rd or 4th July 2017. The complainant was clear as to how Ndiudzei Magawa and the appellant assaulted him and injuries inflicted by each of the assailants. The injuries on complainant’s back are clearly being attributed to the appellate. The complainant was clear as regards the stage appellant got involved. We thus find no risk of any mistaken identity as regards complainant’s assailants including appellant. The appellant’s argument as regards what he terms a proper identification parade is misplaced given the circumstances of the case. It matters not if other CID details joined in the assault as appellant covered complainant with the t-shirt pinning him down. That would not exonerate the appellant.

Conclusion

The appeal by the appellant in respect of the conviction clearly lacks merit. There was no misdirection on the part of the court a quo in its assessment of the evidence.

In the result, the appeal by the appellant cannot succeed and should fail.

It is therefore ordered that the appeal by the appellant in respect of conviction be and is hereby dismissed for lack of merit.

Wamambo J. agrees …………………………………

Mhungu & Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners