Katson Jakosha V THE State

### Preamble
HCCS5/24
CA66/22
KATSON JAKOSHA
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HCCS5/24

CA66/22

KATSON JAKOSHA

Versus

THE STATE

HIGH COURT OF ZIMBABWE BACHI MZAWAZI & MUZOFA 11 CHINHOY1, 12 January 2023

Criminal Appeal

T. H. Maromo, for the State Appellant in person

BACHI MZAWAZI J:	;,

Brief background:

Appellant was charged and convicted of three counts of robbery by the Magistrates court sitting at Chinhoyi Regional Court on the 31" of May 2022. He was sentenced to six years imprisonment on each of the three counts. Three years imprisonment was suspended with conditions from the combined total of 18 years. He was left to serve 15 years in custody.

Aggrieved by that decision, he has appealed to this court against both conviction and sentence in all the three counts. This appeal was heard and determined on the 12* of January 2023. The appeal was opposed. A request for reasons was made to the Registrar öf the High Court Chinhoyi dated the 14’h of March 2024. The delay occasioned in furnishing reasons for our decision was due to administrative issues. Be that as it may, sitting as an Appeal court, we made a finding to quash the conviction and sentence in the first count. lt was clear to us that the court erred in concluding that there was sufficient evidence linking the appellant to the offence. As such, in respect to count one the appeal against both conviction and sentence was allowed and a verdict of not guilty and acquitted was retumed.

However, the same did not obtain in counts two and three. From the submissions made in court we were convinced that the conviction and sentence in both counts were safe given the evidence that was adduced and canvassed before the trial court. We dismissed both grounds of appeal on the two said counts. It naturally then, flowed that, the sentences on the two dismissed counts were re-endorsed as 12 years imprisonment, of which 3 years imprisonment were

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suspended for 5 years on condition the accused does not commit any offence involving violence or dishonesty for which they will be imprisoned without an option of a fine. 9 years imprisonment remained effective.

Facts:

It is alleged that the accused and his accomplice embarked on a robbery spree thereby attacking and robing the three complainants. The modus operandi in all counts is the same. There was use of arms including a pistol and other dangerous weapons. All victims of the offences were subjected to fear, subdued and restrained from movement by having their hands and legs tied. Several valuables worth a lot of money were stolen during the robbery stints from all complainants as itemized and valued in the State outline and attached documents. Some of the property is said to have been recovered from the accused persons. The alleged armed robberies took place allegedly from the 19* to the 21" of January 2021.

The accused persons were youthful and self-actors, however, they, in particular accused one was known to his complainants. He had had previous relationships with them as reflected in the evidence adduced in respect to counts 2 and 3. This evidence was not discredited by the accused in cross examination. In essence, the Accused person made a poor show, in his cross examination of the witnesses, in his defence case and closing submissions.

Accused's Defence:

The accused ‘s defence before the cour/ aquo and this appeal court was a total denial of the commission of all the offences. Since, we upheld the appeal on the first count there is no need to delve in the nitty grittier of that count. Nonetheless, in count 2, it was the accused's defence that he only witnessed the sale of the stolen goods at the farm he was employed. He stated that he was only implicated in the theñ of the same owing to a misunderstanding over his demand of the payment to silence him over the sale. It was his averment that, he witnessed the complainant bringing home the stolen goods. When he demanded payment to stop him from spilling the beans, he said the complainant assaulted him. He in turn made a police report resulting in the complainant being investigated over the assault.

The tables were turned when the complainant who is allegedly one of his complainants then accused him as a suspect in one the robbery charges. It is the same complainant who then

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produced the goods purporting they had been recovered from the accused. The accused was not involved in the recovery of the goods.

In the third count, the accused totally distanced himself from the offence. He relied on the fact that the witnesses in that case did not positively identify their assailants nor any of them. Further, he alleged that he only led the police to the recovery of the stolen vehicle afier a thorough beating. No other indications were made by him.

State evidence before the trial Court:

From the evidence led, the witness in count two stated that after the home invasion and the attendant pandemonium she managed to identify the accused. This is on page 38 of the record. This witness had previous acquaintances with the accused. She had known him for a good seven years. For the seven years as a local of the community, she l1'ad personnel encounters with him a few days before the robbery and on other occasions. Though the accused person and his colleague had initially worn masks during the raid, it is said they unguardedly removed them when they decided to revel in a meal of sadza during the commission of the crime.

In cross examination, the accused did not deny prior knowledge of the complainant. The second witness, used to work with the accused. He too claimed to have identified the accused at the scene though he was wearing a mask. On page 53, the second witness stated that he recovered some of his clothes from the accused and his then burnt motor cycle. He also retrieved his wrist watch and cap worn by the accused on the day of his arrest in the company of police officers. This same witness also saw some of his clothing items on accused's bed and retrieved them.

The investigating officer confirmed that some of the stolen loot was recovered from the first accused. What is even more astounding is that the accused could not explain away the evidence that he led to the recovery of the vehicle stolen in count 3.

Summary of Grounds of Appeal and Analysis:

The grounds of appeal raised were that, as against conviction, the accused was attacking the trial court's finding based on circumstantial evidence. Indeed, the evidence was largely from inferences drawn from the circumstantial ev idence adduced. It is evident that the conclusion which was made derived from the proved facts that did not exclude the accused

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person's guilty. We are of the view that indeed that conclusion was correct given that some of the properties were recovered with the accused. In addition, the identification itself cannot be faulted as the people knew the accused prior to the occurrences. From a broader perspective the totality of the circumstantial evidence was tantamount to proof beyond a reasonable doubt that the accused committed the offence as alleged. However, in R v Mlanibo 1957 (4) SA 727 @ 738 A, ii was highlighted that the State does not have to close every avenue of escape and fanciful or remote possibilities can be discounted.

In the case of S v Gomana SC320/2020 Uchena JA highlighted as follows;

It is trite that an appellate court will only interfere with factual findings of a lower court when it is alleged and proved that the finding was arrived at irrationally. See Hamu v NRZ 1996 (1) ZLR 664 at 670. There is no basis to interfere with the court a quo ’s exercise of discretion. The appellant has not shown good cause for such interference. See, S v dense 2001 (2) ZLR 556 (S).

From that perspective, Superior courts in general, are hesitant to interfere with factual findings of the trial court unless from the total assessment of the proceedings there was a miscarriage Ofjustice. See, Barros & Anor v Chimponda 1991 (I) ZLR 58. Thus, we do not find any justification in interfering with the factual findings of the trial court in general and on conviction perse. We had no reason to fault the trial court which was the trier of facts and had the privilege of assessing the evidence first hand from the mannerisms of both the accused and the seven witnesses. See Arter v Burt 1922 AD 303 at 306.

The same applies to the trial court's sentencing discretion in the two remaining counts. We find no reason to interfere with the sentence as it falls within the range of those laid down in decided cases. See State v Muhoniba SC57/13, State v Mugwenhe & Anor 1991 (2) ZLR 66, State v Muchirahondo HMT 14/21 and State v Ramushu & Anor SC2S/93.

In a nutshell, we were of the view that the appellant failed to demonstrate any misdirections on the part of the court's aquo, both on conviction and sentence in respect to counts two and three.

Accordingly, it is ordered that:

The appeal against conviction and sentence in count one was upheld.

The conviction in count one is quashed and the sentence set aside.

The appellant is found not guilty and acquitted in respect to count one.

Tbe appeal against mony ration and sentence in counts two and three are dismissed

There is no order as to costs.

Muzofa J agrees

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