Tungamirai Nyengera v The State

### Preamble
Judgment No. SC 67/18
1
Criminal Appeal No. SC 455/16
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DISTRIBUTABLE		(5)

TUNGAMIRAI     NYENGERA

v

THE     STATE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKARAU JA & GOWORA JA

HARARE: FEBRUARY 20, 2018 & JANUARY 31, 2019.

Appellant in person

T. Mapfuwa, for the respondent

MAKARAU JA

[1]	This is an appeal against the judgment of the High Court, dismissing the appellant’s appeal against his conviction and sentence by the magistrates court.

[2]	The appellant was convicted of contravening s 136 of the Criminal Law Codification and Reform Act [Chapter 9.23] by the provincial magistrates court, Bulawayo.  He was sentenced to 48 months imprisonment, 12 of which were suspended on conditions.

[3]	The appellant appears in person. Whilst he is a registered legal practitioner, he is entitled to be regarded as a litigant in person and to be afforded a full explanation of the reasons for this judgment.

BACKGROUND FACTS.

[4]	The appellant, in his capacity as a legal practitioner, was acting for one Lungisani Sibanda (“Lungisani”) who stood convicted on a charge of car theft and was serving a 7 - year term of imprisonment at Khami Maximum Prison.  In June 2014, the appellant was instructed to apply for condonation of   the   late noting of an appeal and extension of time to note an appeal by Lungisani, which he duly did. The application was unsuccessful.

[5]	The appellant advised the family of Lungisani of the failed attempt but promised Lungisani’s mother that he would see what else he could do.

[6]	On 23 December 2014, the appellant invited Lilian Tapera, (”Lilian”), sister to Lungisani to come to his offices to pay bail money for Lungisani. Lillian visited the offices of the appellant as invited. Whilst seated in the reception, Lillian saw Absolom Hlupo, “Hlupo”, the appellant’s co -accused, arrive and go into the appellant’s office. Moments later, Lillian was called into the appellant’s office where she paid the bail money and returned to the reception.

[7]	Whilst Lillian was still seated in the reception, the appellant and Hlupo come out of the office, Hlupo was now holding a khaki envelope. He invited Lillian to visit Khami Prison the following day and to bring clothes for her brother Lungisani, who would be released from custody.

[8]	Later, Hlupo gave a khaki envelope to one Eddison Manjengwa, “Manjengwa” his subordinate, with instructions to deliver the envelope to the prison officer on duty at the time.  Manjengwa did as instructed.

[9]	The khaki envelope that Manjengwa delivered to the officer in charge of Khami Maximum Prison contained a fake warrant of liberation for Lungisani, fraudulently misrepresenting that Lungisani had been granted bail pending appeal and had duly paid the necessary amount for such bail.

[10]	On 24 of December 2014, Lillian and Hlupo were arrested at Khami Prison.

[11]	Lillian was handed over to the police who after recording a statement from her released her on the same day.  She was not charged with the offence.

[12]	On 25 December 2014, the appellant in the company of two others, visited Lillian at the residence of her mother and advised her to change the contents of the statement she had made to the police on 24 December 2014.   She did and later reverted to her earlier statement implicating the appellant.

THE TRIAL OF THE MATTER

[13]	The appellant and his co-accused Hlupo were in due course charged with fraud as defined in s 136 of the Criminal Law Codification and Reform Act [Chapter 9.23]. The appellant was convicted and sentenced as detailed above.

[14]	Lillian and seven other witnesses testified.

[15]	The call history of the mobile phones of the appellant, Lillian and Hlupo was adduced into evidence. It showed an unusually high number of calls having been made to and from the appellant’s mobile phone to Lilian on 24 December 2014. During the trial, the appellant consented to admission of the call history into evidence. In his closing submissions, he protested against the admission of the evidence. In his protestations, he alleged that the call history had been obtained illegally and was not authentic.

[16]	In the midst of the trial, Hlupo who was the first accused in the trial court, confessed to his role in the fraud. The trial court did not order a separation of the trials of the two accused persons and in convicting the appellant, it relied on the confession by Hlupo.

APPEAL TO THE COURT A QUO

[17]	Dissatisfied with both the conviction and the sentence, the appellant noted an appeal to the court a quo .Against the conviction he raised a number of grounds chief of which were the following:

17.1	That the trial court erred in admitting the confession of Hlupo against the appellant;

17.2	That the trial court erred in finding that the warrant of liberation proffered to secure 	the release of Lungisani was fake;

17.3	That the trial court erred in admitting the call history of the appellant’s calls during 	the period in question;

17.4	That the trial court erred in relying on the evidence of Lillian Tapera when she 	testified without being cautioned and without seeking such evidence to be

adequately corroborated and

17.5	That the trial court erred in finding that the khaki envelope that Lillian saw at the appellant’s office was the same envelope that contained the fake warrant of liberation.

[18]	Against the sentence, the appellant argued that it was unduly harsh and excessive.

[19]	The court a quo, found no merit in the appeal against conviction which it upheld. It however reduced the sentence from 48 to 36 months imprisonment and suspended 12 months on condition of good behaviour.

[20]	In dismissing the appeal against conviction, the court a quo upheld the findings of the trial court with regards to the reliability of the testimonies of Lillian and Hlupo. In particular, the court a quo found that Lillian was not an accomplice witness whose evidence had to be treated with caution and had to be corroborated before it could be relied on.

[21]	The court a quo also found that the evidence on record covered the issue of the authenticity or otherwise of the warrant of liberation to its satisfaction.

[22]	Regarding the challenge to the admissibility of the call history from the appellant’s mobile phone, the court found that there was no basis for the challenge as the right to privacy is not 	absolute and must yield to common good and the public interest to fight crime.

[23]	Still aggrieved by the conviction, and now the dismissal of his appeal, the appellant noted an appeal to this Court. In his grounds of appeal, he raised the following:

That the court a quo erred in accepting the evidence of the two witnesses who testified that the warrant of liberation was fake as such evidence was not in conformity with the law regulating the authenticity of public documents;

That the court a quo erred in failing to regard Lillian as an accomplice witness as its revision of Lillian’s status was based on an incorrect factual basis;

That the court a quo erred in dismissing the appellant’s challenge against the admissibility of the call history of his mobile phone and

That the court a quo erred by failing to rule against the admissibility of the confession by the appellant’s co-accused in convicting the appellant.

[24]	On the basis of the above grounds of appeal, the appellant prayed for the setting aside of his conviction and sentence.

WHETHER OR NOT THE WARRANT OF LIBERATION WAS FAKE.

[25]	The appellant alleges in the first two grounds of appeal that the court a quo erred at law by holding that the evidence of Freedom Potera and Lungile Moyo had amply demonstrated that the warrant of liberation presented at Khami Prison was fake. The appellant proceeds to 	aver that the evidence of the two witnesses was not in conformity with the provisions of s 266 of the Criminal Procedure and Evidence Act on the admissibility of public documents, an averment that I have had some difficulties in comprehending.

[26]	I note in passing that in view of the defence that the appellant was proffering, one of a complete denial of any role in the alleged fraud, it scarcely lay in his mouth to challenge the finding of the court that the document was fake.  Whilst it was important for the state to prove beyond reasonable doubt that the document was fake, it was not the appellant’s defence that the document was authentic. The net effect of the appellant’s defence was that he had no knowledge of the document fake or authentic.

[27]	At the material time, Freedom Potera was employed as the clerk of the regional court. During the trial of the matter she was shown the warrant of liberation presented at Khami 	Prison.  She testified that it was not issued by her office. The colour of the paper of the 	warrant was white.  She used blue forms. Whilst the warrant reflected a regional court 	criminal record book number, it bore the date stamp of the provincial magistrates court. She was the custodian of the record of the case and she knew that no appeal had been noted in the matter.

[28]	Lungile Moyo was at the time of testifying, an administration officer at Khami Prison. On 23 	December 2014 he was the duty stand -by officer at the prison. He was handed a big khaki envelope by Senior Prison Officer Ngwenya.  He opened the envelope and from it extracted a warrant of liberation in duplicate relating to Lungisani a regional court prisoner yet the warrant was date - stamped from the provincial court. The warrant was white, an unfamiliar colour, it had no prison number and its quality was also unfamiliar.  He held onto the warrant, having decided to confirm it the following day with the court. The following day he telephoned Mrs Potera the clerk of the regional court.  He later received a call from the provincial magistrate confirming that the warrant was fake.

[29]	The court a quo accepted the above evidence of these two witnesses as did the trial court, 	as amply demonstrating that the warrant of liberation was fake.

[30]	 I find no fault with the finding of the court a quo in this regard. The warrant of liberation was fake beyond reasonable doubt.  The evidence of the two witnesses, Potera and Moyo as 	correctly found by the court a quo put it beyond reasonable doubt that the warrant of liberation was fake. No appeal had been noted against the conviction and sentence of Lungisani and therefore he was not entitled to his liberation pending appeal. This position would hold no matter which public office had used its date stamp to issue a warrant for his liberation on this basis. The falsity of the document did not emanate from a confusion surrounding which of the offices had issued it. The falsity of the document arose from the fact that there was no legal foundation upon which it could rest. It could not have been lawfully issued by any public office, whether such officials were called in to testify or not.

[31]	The appellant sought to argue in his heads of argument that since no one was called from 	the office of the clerk of the provincial court to confirm that that office had not issued the warrant of liberation as its date stamp purported to say, the state had failed to prove its case beyond reasonable doubt. Far from it, for in the circumstances of this case, the possibility that the provincial court had issued the warrant was not only remote but fanciful. The matter had been tried in the regional court and the record was being kept in the regional court.  The CRB number cited on the fake warrant of liberation was of the regional court and not of the provincial court.  No appeal had been noted in the matter. To then suggest in these circumstances that bail pending appeal may have been granted in the 	provincial court in the absence of an appeal, defies all logic and is most unreasonable.

[32]	It is trite that the onus on the state in criminal trials is to prove its case beyond reasonable doubt. The onus resting on the state is not to disprove all manner of remote and fanciful possibilities around the incident or crime. That the state does not have to prove its case beyond any shadow of doubt is as old as the common law criminal justice system itself.  It is hardly the subject of any recent judgments as it is one of the moss covered positions at law, having been undisturbed over the centuries.

[33]	The appellant has also averred and argued that the evidence of the two witnesses was not in 	conformity with the provisions of s 266 of the Criminal Procedure and Evidence Act.  Proceeds to argue that the warrant of liberation, being a public document is presumed to be authentic on its mere production in any criminal proceedings and therefore, there was no onus on the appellant to prove his innocence. The appellant is correct in both respects.  There is a presumption operating in favour of the authenticity of public documents upon their mere production in criminal proceedings.  This is provided for in the express language of the law.  Further, there is no onus on an accused person to prove his innocence.

[34]	The import of the appellant’s argument was that both the trial court and the court a quo ought to have accepted the warrant of liberation as an authentic warrant on its mere production and without question.

[35]	In my view, this is where the appellant fell into error. The warrant of liberation in issue in this appeal was not a public document. The evidence on record is clear that it was not issued by the public office lawfully authorised to issue such warrants. More importantly in my view, the point to note is that the warrant was not adduced into evidence as a public document. It was introduced into evidence as the fake document giving rise to the misrepresentation that Lungisani had been granted bail pending appeal. This is the fraud that the appellant and Hlupo were accused of. Therefore and logically, because it was not a public document, the 	presumption created by s 266 of the Criminal Procedure and Evidence Act could not 	operate in its favour.

[36]	In my view, the provisions of the section only come into operation when a document is adduced into evidence as a public document. If the document is adduced into evidence by the state as a fake document as was in casu, albeit purporting to be a public document, the 	onus remains on the state to prove beyond reasonable doubt that the document is fake as alleged. The provisions of s 266 do not come into play at all.

[37]	It is my finding that there is no merit in the first two grounds of appeal relating to whether or not the warrant of liberation was fake and I accordingly dismiss them.

WHETHER LILLIAN WAS AN ACCOMPLICE WITNESS

[38]	The court a quo found that Lillian was not an accomplice and her testimony did not have to be treated with caution or as provided for in s 267 of the Criminal Procedure and Evidence Act. In the third and fourth grounds of appeal, the appellant attacks this finding.

[39]	The trial court had viewed Lilian as an accomplice witness and had proceeded to treat her evidence with caution, seeking corroboration before relying on the evidence. The trial court based its view on the fact that Lillian had been arrested together with Hlupo when the fake warrant was discovered.

[40]	The court a quo held that Lillian was not an accomplice witness as “she (had) genuinely believed in the whole process… and she actually thought there was nothing amiss”.

[41]	The court a quo was correct in holding that Lillian was not an accomplice as there is no evidence that she participated in the generation and presentation of the fake warrant of liberation.

[42]	There is therefore no merit in the ground of appeal raised by the appellant in this regard.   I accordingly dismiss it.

THE ADMISSIBILITY OF THE CALL HISTORY FROM THE APPELLANT MOBILE PHONE

[43]	In the fifth ground of appeal, the appellant avers that the court a quo erred at law by failing 	to find that the appellant mobile phone call history had been unfairly procured and by 	finding that it was authentic.

[44]	 Before oral evidence was led from any of the state witnesses, the call histories from three 	mobile phones whose numbers were given, were adduced into evidence with the consent of 	the appellant. The call histories had been released by the mobile phone service provider pursuant to a court order issued by a magistrate on 13 January 2015.

[45]	In his heads of argument, the appellant avers that the court a quo did not consider the procedural irregularities preceding the granting of the magistrates court order of 13 January 2015 ordering the release of the call history. Apart from this bold averment in the heads of argument, there is no other detail as to the nature of the alleged irregularities or that the alleged irregularities were an issue before the trial court. In other words, these alleged irregularities are not explained or detailed. They are simply alleged.

[46]	The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible. The appellant contended that they were not as the evidence “clearly infringed on appellant’s constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe”.

[47]	Clearly there is no merit in this ground.

[48]	The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the magistrates court is an example of one such derogation.

[49]	The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial. All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the state. Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.

[50]	Having found no merit in this ground of appeal, I will dismiss it.

THE ADMISSIBILITY OF HLUPO’S CONFESSION AGAINST THE APPELLANT

[51]	The appellant avers that that the evidence of Hlupo, which in essence was a confession, was inadmissible as against him. I agree

[52]	Section 259 of the Criminal Procedure and Evidence Act clearly provides that no confession made by any person shall be admissible as evidence against another person.

[53]	I am aware that there is authority to the effect that at common law, a confession may be admissible against a co-conspirator in certain circumstances. (S v Strydorm and Others 1980 ZLR 364 (AD)).

[54]	In this matter, the trial court did not seek to admit the confession of Hlupo under the 	exception as provided under common law. The trial court was of the opinion that the 	evidence was admissible as of right. It further held that what would be inadmissible 	would be confessions made to the police.

[55]	In holding as it did, the trial court erred. Section 259 of the Criminal Procedure and Evidence Act is clear in its provisions. The wording of the section admits of no ambiguity. It admits of no doubt.  It admits of no exceptions. One can almost read it as providing that no confession, by any person, whenever made and to whomsoever made, is under the law, admissible against another person.

[56]	The court a quo was very perfunctory in the manner it treated the challenge to the admissibility of the confession by Hlupo against the appellant. In a cursory manner, it found “no issues with” the evidence. It proceeded to note that Hlupo “expressly told the trial court that he realised that lies would not take him anywhere and he decided midway through his cross- examination to tell the court the truth. He confirmed that the warrant came from the appellant.” It is highly desirable for an appeal court to give adequate reasons and where possible, with citation of the relevant law for each dismissal or upholding of a ground of appeal. It is not adequate to merely find “no issues” with an aspect of the trial challenged in a ground of appeal.

[57]	 The court a quo fell into error by failing to recognise that by opening up to the court as he did, Hlupo was confessing to the crime and in doing so, was implicating the appellant in a 	manner that was prejudicial to the appellant.

[58]	It is my finding that the confession by Hlupo was inadmissible and should not have been utilised in convicting the appellant.

[59]	Having found that the trial court erred in utilising the evidence of Hlupo in convicting the appellant, the next inquiry is to establish whether on the evidence and the findings of fact 	un- affected by the irregularly admitted evidence, there is proof of guilt beyond reasonable doubt.  (S v Strydom and Others (Supra)).

[60] 	 It is my finding that there is other adequate evidence aside of that of Hlupo, that establishes beyond reasonable doubt, that the appellant gave the fake warrant of arrest to Hlupo with the intention of misrepresenting to the prison authorities at Khami Prison, that Lungisani had been admitted to bail pending appeal.

[61]	Utilising the evidence of Lillian and of the remaining witnesses after excluding Hlupo’s evidence, there is an unbroken story that starts from the appellant’s office and ends at Khami Prison.  In that story, the appellant plays the leading role in that he invited Lillian to his offices for the purposes of paying bail money for Lungisani. Lungisani had not been granted bail and therefore everything else that followed after the appellant invited Lillian to his offices was in furtherance of the misrepresentation that Lungisani had been granted bail pending appeal.

[62]	The evidence of Lillian links the appellant to the khaki envelope in which the fake warrant of liberation was. The evidence of the prison officers confirms the misrepresentation that was conveyed to them by the fake document, thus constituting a complete story that the appellant gave out a fake warrant of liberation with the intention of misrepresenting that Lungisani had been granted bail pending appeal when he knew that this was false.

[63]	It is therefore my finding in the final analysis that, even without the evidence of Hlupo, which evidence was inadmissible against the appellant, there is enough evidence from the other witnesses and tendered documents, to prove beyond reasonable doubt, that the appellant committed the offence of contravening s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23] as charged.

[64]	On the basis of the foregoing, I find no merit in the appeal. It must be dismissed in its 	entirety.

[65]	 At the hearing of the appeal, the appellant had served the full sentence imposed on him. He did not pursue the appeal against sentence.

[67]	Accordingly I make the following order:

The appeal is dismissed.

GWAUNZA DCJ:		I agree

GOWORA JA:		I agree

The National Prosecuting Authority, respondent’s legal practitioners