Julius Sisar Mupatsi v The State

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JULIUS SISAR MUPATSI
versus
THE STATE


HIGH COURT OF ZIMBABWE
KARWI AND MAVANGIRA JJ
HARARE, 23 November 2010


Criminal appeal


A Demo, for the appellant
F I Nyahunzvi, for the respondent


        MAVANGIRA J: After hearing the parties in this matter we dismissed the appeal
against conviction and sentence in count 1 in its entirety and allowed the appeal against
sentence in count 2. The following are our reasons for doing so.
        The appellant, who is a Police officer, was charged with firstly defeating or
obstructing the course of justice and secondly, malicious injury to property. He pleaded not
guilty to both counts but was convicted after a trial. He was sentenced on the first count to
18 months imprisonment of which 9 months imprisonment was suspended for 5 years on
condition of future good behaviour. On the second count he was sentenced to 18 months
imprisonment of which 9 months imprisonment was also conditionally suspended for 5
years. A further 3 months imprisonment was suspended on condition the accused paid
restitution of $15 000 000.00 to the Ministry of Home Affairs. Both sentences were
ordered to run concurrently.
        The accused now appeals against both convictions and sentences.
        The facts are that police details from Chivhu Police Station were driving towards
Mupatsi Business Centre where they intended to go and arrest one Mabasa Phoni Mupatsi.
Whilst they were on their way they were flagged down by the accused who asked for a lift
to Mupatsi Business centre. The accused called three colleagues who boarded the police
vehicle with him. It was a pick-up truck and they jumped into the back of the truck. After
travelling a short distance therefrom, one of the police details realised that Phoni Mabasa
Mupatsi whom they intended to arrest at the business centre was one of the passengers who
they had just given a lift in the vehicle.
         The police stopped their vehicle. One Sergeant Munyaradzi alighted from the
vehicle and went to where Phoni Mabasa Mupatsi (Phoni) was seated. He identified
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himself to Phoni, placed his hand on Phoni’s shoulders and told him that he was under
arrest. Sergeant Munyaradzi told Constable Marufu who had also alighted to handcuff
Phoni as he was a wanted person. Constable Marufu managed to handcuff Phoni’s right
hand. It was at this stage that the accused jumped out of the vehicle and stated that the
police details were not going to take Phoni with them. The accused grabbed Sergeant
Munyaradzi while the other occupants came to wrestle Sergeant Munyaradzi who was
trying to handcuff Phoni’s other hand. Sergeant Chatikobo who had alighted and left the
engine running was holding Phoni’s legs.
       During the scuffle the accused shouted that they would destroy the vehicle. The
accused started throwing stones towards Sergeants Chatikobo and Munyaradzi who were
wrestling with Phoni as they tried to handcuff him. The accused threw stones which struck
Sergeant Munyaradzi on the left thigh and the left shoulder. He also threw a stone which
struck the windscreen of the truck on the driver’s side. The details who were trying to
handcuff Mupatsi then released him and also advised Constable Marufu who was being
attacked by two of the accused’s colleagues to retreat. The accused and his colleagues then
went away with the handcuffs as well as the car keys which the accused had removed from
the ignition during the scuffles. The police thus failed to arrest Mupatsi.
       The accused was only arrested at his residence when the police returned with
reinforcements.
       The facts related above give rise to the two counts with which the accused was
charged. The charges are that he defeated or obstructed the course of justice by making it
impossible for the police to arrest Mupatsi who was wanted by the police in connection
with certain criminal allegations. Secondly, that he maliciously injured the State in its
property in that he struck and damaged the police vehicle windscreen with a stone.
       The question to be determined is whether there has been an improper splitting of
charges. In R v Peterson & Ors 1970 (1) RLR 49 at 51G-I BEADLE CJ stated:
       “In the earlier cases to which the learned judge referred with approval, two basic
       tests are set out. One is that where a man commits two acts, of which each, standing
       alone, would be criminal but does so with a single intent, and both acts are
       necessary to carry out that intent, then he should only be convicted of one criminal
       offence. Another commonly applied test, which is a useful one in certain
       circumstances, is that the same evidence which is essential to prove one criminal
       act should not be used again as essential evidence to prove another. Where the
       essential evidence in such cases proves two criminal acts, only one should be
       charged. There are, however, many instances where this test is inapplicable. This
       test, however, is only applicable where the evidence is essential evidence, proving
       an essential ingredient of the offence. The mere fact that evidence may be relevant
       to two separate charges has, of course, little bearing on this problem. … ”
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In S v Simon 1980 ZLR162 at 164B-C DUMBUTSHENA J (as he then was) stated:
       “On the evidence as disclosed in the record it is clear that accused held himself out
       as a policeman in order to induce the complainants to part with their property or
       money. The criminal acts thus separately charged, that is, the two counts of robbery
       on the one hand and the contravention of section 70 (1) (a) of the Police Act on the
       other hand, were done with one criminal intent and constituted one continuous
       criminal transaction, and the evidence necessary to establish the two counts of
       robbery involved proving the impersonation. See R v Tarewa, 1949 S.R. 158; 1949
       (4) S.A. 347 (S.R.) at 348; R v Malako, 1959 (1) S.A. 569 (O.).”

In that case Dumbutshena J invited comments from the Attorney-General. He quoted the
comments received from the Director of Public Prosecutions. The comments read in part:
       “The approach to be used in such cases was laid down by the Appellate Division in
       S v Brereton, 1970 (2) R.L.R. 272 (A.D.) where it was said at p 277A:
              ‘In such cases, where the accused, in pursuance of the dominant intention,
              commits a number of offences, the proper thing to do is to charge him with
              only that offence which was his dominant purpose.’”

The headnote in S v Jambani 1982 (2) ZLR 213 (HC) reads:
       “It frequently occurs, during the course of criminal conduct, that several offences
       are committed. To charge the accused with all those offences, however, may well
       result in prejudice to him, since the whole of the criminal conduct imputed to him
       in substance only constitutes one offence. In such a situation, the correct course is
       to charge the accused with that offence which was his dominant purpose. This does
       not mean that the test of ‘dominant purpose’ is the only one to be applied; in some
       situations it may still be appropriate to charge the accused with more than one
       offence.”
Further still, in S v Mutawarira 1973 (1) RLR292 at 296C - F BEADLE CJ said:
       “The law on the subject of splitting of charges was extensively examined by the
       Appellate Division of South Africa in S v Grobler & Anor., 1966 (1) S.A. 507
       (A.D.), and by the General Division of this court in R. v. Peterson & Ors., 1970
       (1)R.L.R. 49. Peterson’s case (supra), in effect, adopted all the reasoning in
       Grobler’s case (supra). The principle which appears from Grobler’s (supra) (I
       quote from p.518 where Wessels, J.A., quotes from the judgment of KOTZE, J.P..
       in the case of Gordon v R, 1909 E.D.C. 254), is that:
                “‘It is difficult, if not impossible, in view of the decided cases, to lay down
               a hard and fast rule, which will apply with justness in every instance …’”

WESSELS, JA, summed up the approach to this problem at p 523 thus:

               “Having regard to the genesis of the rule (which could in my opinion be
               more aptly described as a rule of practice against the duplication of
               convictions) I am of the opinion that it was designed to prevent a
               duplication of convictions in a trial where the whole of the criminal conduct
               imputed to the accused constitutes in substance only one offence which
               could have been properly embodied in one all-embracing charge and where
               such duplication results in prejudice to the accused”.

       In casu, it is clear that the appellant’s dominant purpose was to prevent the arrest of
his brother, Phoni. The police vehicle was damaged during the process of trying to achieve
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that dominant purpose. From a perusal of the authorities, including those cited above, it
would appear that what happened in this case was therefore an improper splitting of
charges. For that reason the conviction on the second count, of malicious injury to property
cannot be allowed to stand.
       The appellant contends that on the merits of the case he ought not to have been
convicted of defeating or obstructing the course of justice. He contends that he did not
know that these were police officers. This contention is disproved by his own statement in
his defence outline when he stated as follows:
        “… They now demanded fare and this made to suspect that they were not police
        officers.”
If it was the alleged demand for fares which made him suspect that the persons who had
given them a lift were not police officers, then it confirms that the police details had in fact,
as they stated, identified themselves as police officers.
       The appellant also contends that the lower court ought not to have convicted him on
the basis that it did not believe his version. The case of R v Difford 1937 AD 370 at 373
was cited. GREENBERG J stated therein that:
       “No onus rests on an accused to convince the court of the truth of any explanation
       which he gives. If he gives an explanation, even if that explanation is 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
       reasonable possibility of his explanation being true, then he is entitled to his
       acquittal.”

       The trial court having found the appellant’s story to be false and unacceptable, it
was justified in convicting the appellant. The appellant’s contention to the contrary in this
regard is based on a half-baked appreciation of the dictum in the Difford case. The
conviction is properly justified and supported by the evidence on record. The court’s
judgment is clear and based on sound grounds. I thus find no valid concerns which have
been raised in relation to the conviction.
       Regarding sentence, the accused being a police officer, was dealt with appropriately
by the trial court. His whole conduct during the whole incident is deplorable. It shows
lawlessness which cannot be expected, let alone condoned or taken lightly, if exhibited by
a police officer. Furthermore, knowing that these were police officers, he ought to have
conducted himself in a manner as to complement their efforts, not to frustrate them. A
custodial sentence was called for. The lower court’s reasoning in this regard cannot be
faulted.
       In the result, the conviction and sentence in count 1 are upheld while in count 2 the
conviction is quashed and the sentence set aside. These were the reasons for our dismissal
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of the appeal against conviction and sentence in count 1 in its entirety while allowing the
appeal against conviction and sentence in count 2.


KARWI J, agrees…………………….




Chihambakwe, Mutizwa & Partners, appellant’s legal practitioners