Tinase Munyai v The State

### Preamble
1
HMT 87 -20
CA 24/20
REF CASE NO. MUTP 375/19/20
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TINASHE MUNYAI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA and MUZENDA JJ.

MUTARE, 11 and 26 November 2020

Criminal Appeal.

V. Chinzamba, for the Appellant

M. Musarurwa, for the Respondent

MUZENDA J: This is an appeal against both conviction and sentence where the appellant was convicted of Robbery as defined in S 126 (1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] where he was sentenced to 48 months imprisonment of which 6 months imprisonment was suspended on the usual conditions of future good behaviour.

The grounds of appeal were outlined as follows:

AGAINST CONVICTION

The learned Magistrate misdirected herself and thus erred at law by convicting the appellant basing on identification evidence which was poor and riddled with inconsistences

The learned Magistrate also erred by convicting the appellant when there was no identification parade done to test the veracity of the identification evidence

The learned Magistrate also erred by rejecting the appellant’s defence of an alibi which was never investigated and disproved.

AGAINST SENTENCE

The Learned Magistrate imposed a sentence which was manifestly excessive and induces a deep sense of shock in light of the mitigatory factors advanced in favour of appellant.

The Learned Magistrate erred in aggravating the offence by asserting that the injuries sustained by the complainant were serious in the absence of medical evidence to support such a finding.

Factual Background

The appellant was alleged to have unlawfully and intentionally used violence by producing a knife to the complainant on the 23rd of August 2019 at a bridge near Villa Spot, Dangamvura, Mutare to induce submission and stole $100-00. The court a quo summarised the following as issues of common cause: Complainant had not known appellant prior to the alleged date of offence. The alleged robbery occurred around 2 am in the morning. Complainant was injured on the cheek, the assailant was putting on a black hood jacket. A motor vehicle arrived at the scene and stopped to assist complainant. The perpetrator tried to pull complainant from the back seat of the car where she had entered to seek refuge. The alleged perpetrator’s nickname was “Ngungu” and the name was mentioned by the occupants of the car which stopped at the scene and that the name Ngungu alluded to the appellant. Complainant lost $100-00  Zimbabwe currency at the scene .

The Learned Magistrate reasoned in her judgement that what remained to be decided was the identity of the robber.

Evidence before the lower Court

On pages 10-11  of the record of the proceeding the trial court analysed the evidence of the three witnesses who testified for the state to have established the following:

the perpetrator was wearing a black hooded jacket which at some point was removed from the head of the perpetrator.

the illumination from the moonlight as well as from the vehicle’s head lights provided a source of light.

at some point whilst the car was still at the scene, the perpetrator attempted to pull complainant from the motor vehicle at close range.

On page 10 of the record of proceedings, the trial court looked at the law and then concluded that from the evidence of the complainant it was clear that she actually made physical contact with the appellant and his outstanding accomplice and resultantly gave the witness close and good look at her assailants. The assailants held and grabbed her by hands, they dragged her into the bush, the perpetrator tried to pull her out of the car. The trial court cautiously dealt with identification under moon-light but then settled the complexity by looking at the light from the rescuing car which stopped at the scene. The light from the motor vehicle was bright enough to facilitate good identification, it was concluded by the trial court. The trial court further made a finding to the effect that indeed there were some inconsistencies amongst the state witnesses, however on the issue of identification all 3 witnesses corroborated each other (line 4 on p.12 of the record).

On the appellant’s defence of alibi the court a quo analysed the evidence of both appellant and his defence witness Sandra Trish Mutimodyo and came to a conclusion that although appellant was with the defence witness on that day, the two did not share the bedroom for the entire night. When the defence witness retired leaving appellant in the lounge, it was possible appellant could have left the house, went out to commit the offence since the offence was committed at 2.00 am, after the commission of the offence, appellant returned to the sitting room. The trial court concluded that it was the appellant who robbed the complainant on the date and time in question.

The law on identification.

In the matter of Miller Ndhlovu and 2 Others v The State the then learned Judge of Appeal clearly reiterated the law on identification as follows:

“It is properly recognised that positive assurance of identification by a single honest witness …..will not suffice. Confidence and sincerity are not enough. The possibility of a mistaken identity occurring in the identification especially where the witness has not known the person previously, demands that the greatest circumspection should be employed”.

As Williamson JA warned in S v Mehlape

“The often patent honesty, sincerity and conviction of an identifying witness remains, however, ever a snare to the judicial officer who does not constantly remind himself of the necessity of dissipating any danger of error in such evidence”

In similar tone Holmes JA in S v Mthetwa remarked with his accustomed lucidity:

“Because of the fallibity of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lights, visibility and eyesight; the proximity of  the witness, his opportunity for observation, both as to time and situation; the extend of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s force, voice, build, gait and dress: the result of identification parades, if any and, of course the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence and the probabilities

In the case of Stephen Mhlobo v The State Mcnally JA stated the law as follows:

“Very broadly speaking the judgment of Lord Widgery was to the effect that good identification does not need corroborating or support, but poor identification does. Good identification he defined by examples. (1) a kidnapper who identifies him without hesitation months later. (2) a suspect person kept under observation and seen by two policeman several times, identified by them six months later. (3) A colleague known from work for several years, seen clearly stealing a wallet from a looker. Such cases, said Lord Widgery, could safely be left to the jury to decide. On the other hand identification is poor. When it depends solely on fleeting glance or on a longer observation made in difficult conditions”

“Recognition” he said elsewhere in the judgment, “may be more reliable than identification of a stranger”. In such cases corroboration or support (and odd coincidences, unexplained can, he said, be regarded as support) should be required.

The law on the defence of Alibi

The law on the aspect of alibi is now settled in our courts. The defence of an alibi must be properly probed by the state once mentioned by an accused upon his arrest, or when he provides his statement to the police under warn and caution . The court can also reject an alibi where it had been disproved by the state. The trial court can equally dismiss an alibi where it had analysed evidence before it in conjunction with the defence. The alibi should be given with enough detail by the accused to trigger meaningful investigation of the defence, such as the place, time, names of people related to the alibi as well as dates. It should be added that such an alibi’s details must be raised by an accused at the earliest opportunity available to him so that police would timeously establish its veracity or otherwise well before the matter is taken to court for trial.

Law on the aspect of sentence.

Determination of an appropriate sentence after the conviction of an accused is the prime domain and discretion of the trial court. A superior court will not lightly interfere with a court’s sentence, unless the discretion for the sentencing process, was not judicially exercised, in other words, unless the sentence is vitiated by irregularity or gross misdirection, or that it is so severe that no reasonable court would have imposed it. The Superior Court should satisfy itself that the sentence does not only appear to be severe, but that it is disturbingly so.

Apply the law to the facts.

Whether the Learned Magistrate misdirected herself by convicting appellant basing on identification evidence?

It is important to point out right at the outset that appellant’s first and second grounds of appeal speak about identification. The second ground however dwells on the need for the state or police to have conducted an identification parade.

It is apparent from the record of proceedings  that the Learned Magistrate applied caution in this case when dealing with identification evidence. She proceeded rightly so to cite relevant case law and from that stage properly in my respectful view analysed the evidence before her. The cases alluded to by the defence counsel in his heads and cited herein above in this very judgment involved a single witness. Indeed a greater caution has to be exercised even though the witness may be adjudged by the trial court to be an honest witness. However good identification may not require corroboration it is bad identification which needs supporting independent evidence.

The court a quo first found the complainant credible and honest in her identification of the appellant given the three occasions she observed the appellant. The complainant jumped into the car at a point away from the appellant. When she was in the car going towards the point where she had outpaced the appellant, she positively identified the appellant who was walking on along the road. When the appellant noticed the presence of the complainant in the car he attempted to fish her out of the car. Appellant repeated that he had unfinished business with the complainant. At that stage there was light from the car and the conduct of the appellant in trying to drag complainant out of the car provided a clear vivid opportunity for complainant to identify the appellant. In any case the appellant was further identified by the car occupants as “Ngungu” which alias presumably led the police to arrest him.

The issue of dock identification being raised by the defence does not arise in the circumstances. The appellant was identified by three state witnesses and the lower court had the opportunity of directly assessing the conduct and evidence of these witnesses and found all three of them credible. There is no legal basis to be relied on by this court to find adverse conclusions by the trial court. The lower court cautiously dealt with the matter, applied the appropriate law and made a finding on the issue of identification. I see no misdirection on the part of the lower court.

It is true that an identification parade could have further corroborated the aspect of identification of the appellant. However the evidence of the occupants of the car that stopped at the scene as well as the alias of appellant provide adequate corroboration in my view. The trial court dealt with the inconsistencies and made a further finding that such inconsistencies were not very material and did not affect the state case on the issue of identification. Indeed such a finding by the court a quo cannot be faltered by this court. As a result we are convinced that the two grounds of appeal relating to identification have no merit and they are both dismissed.

Whether the learned Magistrate erred by rejecting the defence of an alibi which was never investigated and disproved.

The defence outline of the appellant which is on p 22 of the record is but a bare denial. No details of the alleged alibi were provided by the appellant. The warned and cautioned statement of the appellant is not part of the record of proceedings. The particulars of the alibi only appear during cross-examination of witnesses.

As already pointed above when this court was dealing with the law on alibi, the accused who intend the police or the state to probe his alibi, must provide all the necessary details of the alibi so that it be properly investigated. The appellant deliberately chose to ambush the state by raising the alibi details only during cross-examination. That was not proper at all. The allegation by the appellant that his alibi was never investigated is misplaced in the absence of details.

In any case on the date of hearing appellant counsel agreed that the appellant went a step further to avail a witness to prove the issue of alibi and the lower court had an opportunity to juxtapose that evidence with that of the state and came to a conclusion that the appellant’s defence of alibi was not proved. Such a conclusion is and was competently and judiciously reached, we see no fault in it nor can we say that it was a misdirection on the part of the lower court. The defence witness conceded during cross-examination that evening she left appellant  in the sitting room when she retired and it was possible that appellant left the house and went to the scene of crime at 2 am whilst the witness was fast asleep. It has not been proved by the appellant that such a conclusion is far fetched on the part of the court a quo. The criticism of the court a quo is not justified by facts and the third ground of appeal has no merit. It is dismissed.

Appeal against sentence

The appellant was sentenced to 48 months imprisonment (4 years) of which 6 months imprisonment was suspended. He was left to serve 3 ½ years imprisonment.

In the didactic case of S v Madondo for case of robbery the starting point is a sentence of 5 years imprisonment with a portion suspended on conditions set by the trial courtj. Section 126 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for life imprisonment or any shorter period if the crime is committed in aggravating circumstances. The sentence may even be more where the robbery was premeditated.

The robbery in this case was committed at 2:00 am and the appellant was with an accomplice armed with a knife. Complainant is a woman. She obviously felt more apprehensive by the attack, she was actually sliced on the face and was seen bleeding, she was forced to part with her money,  after giving the appellant the money she was grabbed by appellants walking her to an unknown destination until she broke free. When she found refuge in the car appellant tried to pull her out of the car stating that he had not yet finished with her. The moral blameworthiness of the appellant was very high and courts should show disfavour of such conduct. Having looked at the grounds of appeal for and against sentence. I am satisfied that the lower court properly and judiciously exercised its sentencing discretion and there is no reason to interfere with the sentence.

Disposition

IT IS ORDERED THAT:

The appeal against both conviction and sentence has no merit it is accordingly dismissed in its- entirety.

MUZENDA J         ____________________________

MWAYERA J  Agrees. ____________________________

Mugadza Chinzamba & Partners, Appellant’s legal practitioners

National Prosecuting Authority, for the State.