Talent Gwaze v The State

### Preamble
1
HH 456-22
CA 311/20
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TALENT GWAZE

and

THE STATE

HIGH COURT OF ZIMBABWE

ZHOU & CHIKOWERO JJ

HARARE, 30 May, and 11 July 2022

Criminal Appeal

Appellant in person

T Kangai, for the respondent

CHIKOWERO J:

INTRODUCTION

This is an appeal against both conviction and sentence.  The appellant was convicted of robbery as defined in s 126 (1)(a) as read  with subsection (3) (a)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code).  He was sentenced to 11 years imprisonment of which 3 years imprisonment was suspended for 5 years on the usual conditions of good behavior, to leave the effective custodial sentence of 8 years imprisonment.

BACKGROUND

The appellant, as the first accused, was jointly charged with four others.  The second, third and fourth accused were also convicted and received the same sentence as that imposed on the appellant.  The trial of the fifth accused was separated from that of the others after the former appeared to have suffered from some mental health ailment during the course of the trial.

The trial court found that the state had proved beyond reasonable doubt that the appellant, who was a former employee of the complainant, had supplied certain information to his co-accused.  It was this information that the second and third accused then used to perpetrate the actual robbery on 28 September 2017 at the complainant’s house in Bindura. All the accused persons who were using a motor vehicle, had met and strategized at the Zimbabwe Ezekiel Guti University turn off in Bindura.  The first accused and the appellant proceeded to the scene of crime on a surveillance mission.  Upon their return the appellant proceeded to the Aerodrome Shops to wait for his partners in crime.  The third, fourth and fifth accused persons thereafter appeared at the complainant’s house where upon they hid under a parked trailer pending the arrival of the complainant.

At about 9 pm on 28 September 2017 the third, fourth and fifth accused then severely assaulted the complainant,  his wife and niece and stole US$41 000, a Samsung A7, I Phone 5S, two Alcatel smart-phones, Toyota D4D  commuter omnibus keys, Toyota Vigo keys and shop keys among other things.

The appellant, who was communicating over the phone with accused two before and after the robbery, then physically linked up with the second, third, fourth and fifth accused and made good their escape.

The evidence relied upon by the court a quo to convict the appellant and the  second – fourth  accused included:

Indications forms made by the second –fifth accused persons.

Photographs of the second –fourth accused persons making the indications.

Photographs of witnesses identifying accused three and four at an identification parade.

Identification parade forms

A bag containing an Escort shotgun, a red and black toy pistol, rounds of ammunition and an explosive.

Motor vehicles

The appellant and second - fifth accused persons’ warned and cautioned statements.

ZWL$ 5000, ZWL$2 400, US$ 1130 and a jean bag.

The complainant, his spouse and niece’s medical affidavits.

The following evidence was common cause:

The complainant, his spouse and niece were assaulted by robbers on 28 September 2017 at the former’s house situate in Aerodrome, Bindura as confirmed by the  medical reports

As a result of the assaults the three complainants were induced to submit to the taking of the property that we have mentioned elsewhere in this judgment.

All the accused persons, save for the appellant, made indications to the police

The third and fourth accused participated at an identification parade.

In addition, the appellant did not lead the police to recover the stolen property and the weapons used in committing the offence.  Instead, the indications made by his co- accused led to the recovery of such weapons and some of the stolen property.  Further, it was common cause that the appellant did not physically participate in the actual act of robbery.

The appellant was convicted because the court was satisfied that the totality of the evidence justified such verdict.  In addition, all the accused (the appellant included) decided not to give evidence.  They refused to answer questions put to them under cross examination by the prosecutor.  They declined to re-examine themselves.  Finally, all refused to respond to the court’s questions on whether they had witnesses to call.

The appellant’s defence that he was not in Bindura at the time that the offence was committed was found to be beyond reasonable doubt false.  We will advert to the reasons thereof in disposing of the appeal.

THE DETERMINATION OF THE APPEAL AGAINST CONVICTION

The first ground of appeal was not pursued at the hearing. This was that the Regional Court, sitting at Harare, had no jurisdiction over the matter as the robbery occurred in Bindura.  In the result, the need to discuss this ground of appeal no longer arises.

The appellant also urges us to overturn the conviction on the basis that the evidence did not place him at the house in question at the time that the robbery was committed.  There is no merit in this contention.  His defence as outlined was that he merely passed through Bindura on his way to Kadoma on the day that the offence was committed.  In other words, the defence was that he was no longer in Bindura around 9pm on 28 September 2017.  It was common cause that he did not participate, physically, in the actual robbery.  His conviction was grounded on the court’s acceptance of a call history showing that he was in fact in Bindura at the time of commission of the offence.  That exhibit showed not only that he had telephonically communicated  with accused two a day before the robbery but also that he was in constant communication with the same co-accused, through mobile phone, before, during and after the robbery.  The calls were made and received in Bindura. The alibi defence failed as there was sufficient other evidence showing that the appellant was not only in Bindura at the time material time but was working in common purpose with those that perpetrated the actual robbery.  In these circumstances, his non-appearance at the scene of the offence at the material time was of no consequence.

The third ground of appeal reads as follows:

“The trial magistrate erred when he considered  as credible statement to made by accused under trauma of being manhandled by the police , which only as a matter of fact, a person in such state can be easily manipulated and provide false information which would self-incriminating and not at all credible”

In a nutshell, appellant takes the point that the learned magistrate should have found that the appellant lied in his warned and cautioned statement (whose contents were self-incriminatory) because he had been “manhandled” by the police. That is not the same thing as saying, as he sought to argue on appeal, that the court ought to have excluded his warned and cautioned statement because the admission of that evidence rendered the trial unfair: s 70(3) of the Constitution of Zimbabwe Act, 2013. Since an appeal stands or fails on the grounds cited in the notice of appeal, it is unnecessary for purposes of this particular matter to determine whether the admission into evidence of the appellant’s warned and cautioned statement violated his right to a fair trial.  The third ground of appeal does not raise that issue.

The appellant’s warned and cautioned statement was admitted into evidence consequent to the court holding a trial within a trial.  In his warned and cautioned statement the appellant admitted that he committed the robbery in the company of accused two, three, four and one whose name was simply given as Justice.  The appellant explained therein that he availed information pertaining to the security set up at the complainant’s house to accused two after which he met accused two, three, four and Justice whereupon a plan was hatched  on how to commit the robbery.  He also mentioned the amount of money that he received, after the robbery, as his share of the loot.  The contents of his warned and cautioned statement are on all fours with those of accused two, three, four and five.  Accused two, three, four and five led the police on indications.  Some of the stolen property was recovered pursuant to such indications, as were the weapons used in committing the offence.  Accused two and three were identified by the second and third complainants at an identification parade. Photographs  of the relevant accused persons in respect of the indications and identification parade were admitted into evidence pursuant to the holding of a trial within a trial and the court’s consideration of S 170(3) of the Constitution as read with s 256, 258 and 258A of the Criminal Procedure and Evidence Act [Chapter 9:07].  In the circumstances, our view is that the learned magistrate was correct in accepting, as true, the contents of the appellant’s warned and cautioned statement.  That statement was corroborated by the contents of the other warned and cautioned statements, the indications, evidence of identification relating to the third and fourth accused and the recoveries.

In the fourth ground of appeal, the appellant criticizes the learned magistrate for preferring the state case over the appellant’s defence case.  This ground of appeal is completely misconceived.  As already pointed out, none of the accused persons (the appellant included) gave evidence.  The state case was all there was before the court a quo. Having been uncontroverted by any other evidence (since none was led) the prosecution, which had established a prima facie case at the time it closed its case, had the luxury of simply having the same case transforming into proof beyond reasonable doubt after the appellant declined to testify.  The fourth ground of appeal is dismissed.

The appellant submitted that since the record of the call history did not reflect the content of those calls all that was before the learned magistrate was speculation that the calls were concerned with the planning and the execution of the robbery.  The tragedy for the appellant is that he did not give evidence.  He did not explain the subject of the calls.  His assertions on the subject of the calls, made while cross-examining the state witnesses on the call history, is not evidence.  We have already stated that one of the calls was made a day before the offence was committed with four others being made and received in Bindura before and about the time of the robbery.  All these calls involved the appellant, who was shown to have given the manifestly false defence that he was not in Bindura at the time that the offence was committed.  We are satisfied that the learned magistrate correctly inferred that the phone calls were in connection with the planning, execution of the robbery and the flight from the scene of the crime.

The appellant, in the seventh ground of appeal, contends that the trial court relied on the hearsay evidence of the complainant, to wit, that the robbery was an inside job.  This ground is without merit.  In fact, the complainant, his spouse and niece did not link the appellant to the robbery at all.  They did not even know why he was on trial.  All they knew, which related to him, was that he had previously worked at their creche and in that capacity would appear at their house.  The appellant, in cross-examining them, denied ever setting foot at their residence.  The learned magistrate found it unnecessary to comment on this.  What was important was that all the accused persons, in their warned and cautioned statements, spoke to the appellant as having availed the information which made the robbery possible.  Resultantly, the seventh ground of appeal is dismissed.

The last ground of appeal is vague.  We did not hear the appellant making any submissions on it.  It reads:

“The court a quo erred by not tasking the state on corroborating evidence to legitimise the credibility of the information provided to the detectives leading to the arrest of the perpetrators chances are it could have been a premeditated plan to place accused 1 as a perpetrators in the offence.  The provider of such information could have been the actual perpetrators and above all under the protection of the detectives as such source was not indicated by the state hence the need to syncronise and harmonise the allegations.”

Counsel for the respondent did not make any submissions on whether this ground of appeal is valid.  At this stage, all we do is to proceed on the basis that the appellant abandoned the last ground of appeal.  The ground merits no further attention.

The appellant’s overall argument was that there was inadequate evidence to justify his conviction.  We have explained the basis of the court’s decision to convict and why we agree with that conclusion.  We emphasize that the failure by the appellant to adduce evidence and his refusal to respond to questions posed to him by the state at the trial sealed his fate.

That cross-examination proceeded as follows:

“Q:	I put it to you accused person that taking into account that you knew the day to day activities at the complainant’s place of residence, you then connived with the co-accused persons and planned to rob the complainant’s place of residence (No response)

Q:	I will also put it to you that you actually benefitted from the money that the complainant was robbed.  You actually received your share of the money.  (No response)

Q:	I also put it to you that you failed to explain to the court as to the reason why you would call second accused person on that particular day (No response)

NO FURTHER QUESTIONS

BY THE COURT (To Accused 1)

From the questions that you have been asked by the state, is there anything that

you feel that you want to clarify on?  (No response)

Do you have any witness that you want to call?  (No response)”.

The appellant thought that he was exercising his rights as set out in s 70(1) (i) of the Constitution which reads:

“70 Rights of accused persons

(1)Any person accused of any offence has the following rights:-…….

(i) to remain silent and not testify or be compelled to give self-incriminating evidence”

We observe in passing that the appellant had already spoken by stating his defence outline and cross-examining such of the state witnesses whose evidence he thought required such treatment.  As the learned Magistrate correctly observed in his judgment it was a grave error for the appellant to thereafter decide to become silent and not to testify when a prima facie case had been established against him at the close of the case for the prosecution.  Indeed, the appellant appeared to concede as much when he concluded his mitigation in these terms:-

“Your Worship I want to bring it to this honourable court that I am very happy and pleased with the justice that has been exercised before this court, because the court explained to me that my ability to explain would indeed exonerate me but then my failure to explain would obviously render me being found guilty.  So, it was only because of my choice to remain silent that has then led adverse inferences being drawn and me being found guilty.  So I put myself your Worship in the hands of the court and ask for the court to be merciful in this regard and I would ask the, court not to be too harsh when it comes to sentencing.  That will be all your Worship in my mitigation”

When we asked the appellant to address us on the impact of his decision to become silent on the correctness of the decision to convict, he appeared to again concede that the appeal against conviction should fail.  Since he was a self-actor, and out of abundance of caution, we have proceeded to deal with the appeal against conviction on the merits in so far as the grounds of appeal allow us to do so.

The appeal against conviction fails

THE APPEAL AGAINST SENTENCE

The appellant argued that the sentence which was imposed on him is manifestly harsh and excessive as to induce a sense of shock.

He did not refer us to comparable cases in which lesser sentences were imposed.

Our view is that the learned Magistrate properly balanced the mitigatory and aggravatory factors.

The appellant is a first offender.  He was 27 years old at the time of sentence.  He is married and is blessed with a child.  He had spent a considerable period in custody pending the conviction and imposition of sentence.  The court stated that it reflected this in the sentence.

As against the appellant, the learned Magistrate considered that robbery committed in aggravating circumstances was a very serious offence.  He was alive to the legitimate expectations of society in sentencing offenders in such cases.  A firearm and a rod were used in perpetrating this robbery.  The complainant was bludgeoned on the forehead and lost consciousness.  His spouse was subjected to not less than six severe blows resulting in her sustaining serious injuries.  Their niece was not spared.  The attack on all three was not called for.  Neither had offered any resistance.  The savage attack only demonstrated that the assailants, were cruel.  The learned Magistrate, properly in our view, remarked: -

“It is one robbery that could easily have turned into a murder meaning that it stands at the worst end of the scale…..”

The society’s attitude to robbery committed in aggravating circumstances is reflected in s 126(2) (a) of the Criminal Law Code.  The sentence ranges from life imprisonment to any definite period of imprisonment.  There is no option of a fine.  The protection of the public is a paramount consideration in assessing an appropriate penalty.  That can only be achieved through lengthy custodial sentences.

As way back as State v Madondo 1989(1) ZLR 300(H) this court said of robbery and the approach to sentencing in such matters:

“Robbery is an inherently serious offence.  It usually involves premeditation, criminal resolve and purpose, brazen execution, an attack on a human victim with an attendant disregard of that person’s right to personal security and forceful dispossession of whatever property the victim has.  It is also a terrifying and degrading experience.  The victim is injured in his person and his property.  The robber acts with contempt and callousness.  It is therefore proper to regard robbery as a particularly reprehensible form of criminal behaviour.  That attitude should be reflected in the sentence.”

These observations apply to this matter with equal force

We are satisfied that the sentence imposed strikes the necessary balance between the offender, the offence and the interests of the society.

The sentence is neither harsh nor excessive.  It does not induce a sense of shock.  The appeal against sentence is devoid of merit.

ORDER

The appeal be and is dismissed in its entirety.

ZHOU J: Agrees………………………………..

The National Prosecuting Authority, respondent’s legal practitioners.