S v Jumo (CRB 28 of 2015; HH 247 of 2016) [2016] ZWHHC 247 (6 April 2016)

1 HH 247/16 CRB 28/15 THE STATE versus COSMAS JUMO HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 12 and 13 February, 12 March, 24 November 2015 and 6 April 2016 Assessors: Mr Mhandu Mr Mutambira Criminal Trial P. Chikangaise, for the state T.. Zhuwarara, with him N. Chamisa, for the accused MUSAKWA J: The accused person is charged with the murder of Remember Mupasi. The incident occurred on 27 May 2014 along 270th Street, Kuwadzana 3 in Harare. It is common cause that the deceased was attacked by some unknown persons. The deceased’s cell phone, a Nokia Asher was subsequently recovered from a person who claimed to have purchased it from the accused person. This led to the arrest of the accused person and another. The other suspect is said to have committed suicide whilst in Police cells. The accused denies ever having been to Kuwadzana. His defence is to the effect that he visited his sister at number 6 Jumbo Road, Kambuzuma 6. He spent two days there. On 28 May he left for Mbare at 0830 hours in the company of his wife en route to Gokwe Nembudziya. Whilst waiting for a bus he met an old school mate, Chimika Bauti who offered him a cell phone for US$20.00. Since he did not have money he offered the phone to a friend, a bus conductor. The friend did not buy as the phone had some problems. The accused took the phone to Chimika Bauti who rectified the problem. He then took back the phone which he gave to Tafadzwa Mashina. Tafadzwa Mashina in turn took the phone away and returned with US$30.00. The accused did not see the person who bought the phone. He was surprised to be accused of murder two weeks later. He was assaulted by Police Officers. He indicated Chimika Bauti as the seller. Chimika Bauti later committed suicide. HH 247/16 CRB 28/15 Evidence was led from Bothwell Simenti who works as a tout for Zvishandwa Bus Service. On 28 May at 0800 hours he was at Mbare Bus Terminus. The conductor, Tafadzwa Mashina remarked to the witness that he had a cheap phone. He further told the witness that someone had a better phone. He was introduced to the accused person who had a black Nokia Asher cell phone which he said he was selling. Tafadzwa had told the witness that the accused had insufficient money for bus fare. After he inserted a subscriber identity module card (sim card) and memory card, the phone froze. The accused stated that the memory was full and he made some deletions. This took place as they stood by the bus. The accused’s wife was present. When the sim card was inserted again the phone began to function. Tafadzwa told the witness that the accused and his wife were regular travellers. The accused stated that the phone was used by his wife and the wife confirmed so. The witness paid US$30 for the phone. After a few days Police Officers approached the witness and questioned him. He was arrested and taken to Harare Central Police Station. He denied ever seeing Chimika Bauti. He identified the phone that was produced as an exhibit. During cross-examination it was put to the witness that there were some aspects of his evidence that were not in his statement to Police. For example, on the issue about the presence of the accused’s wife, even if the witness omitted that in his evidence in-chief, it is not in dispute that the transaction took place in the presence of the accused’s wife. The same applies to the evidence regarding the visit to the accused’s home where the arrest took place. The witness was also taken to task regarding the inserting of the sim and memory cards. Tafadzwa Mashina the conductor testified that the accused used to travel on their bus between Gokwe and Harare. On two previous occasions they conveyed the accused and his wife on credit. The two would pay the fare upon reaching their destination. He would hold onto their wares until they paid the fares. His evidence on the transaction relating to the phone is similar that of Bothwell Simenti. He was also put to task regarding the omission of some details from his statement. Never Mupandira resides in Kuwadzana 3. He testified that during the night he heard someone cry out. He went outside and saw two people jump over a wall to Kuwadzana 1 High School. He went to where the deceased was and noted that he had injuries to the head. The deceased could not speak. The deceased’s sister later came and identified him. It was HH 247/16 CRB 28/15 confirmed that the deceased was on his way home from work at Rainbow Towers. His uniform was in a bag. The arresting detail and investigating officer, Detective Sergeant Madzivanyika stated that he received the docket on 5 June 2014. He visited the scene and interviewed witnesses. He established that the deceased lost a Nokia Asher cell phone with line 0774357113. Through Econet he sought the location of the phone. This led him to Bothwell Simenti who implicated the accused whose whereabouts he did not know. He apprehended Tafadzwa Mashina who led them to Musadzi Business Centre, Gokwe. From there they proceeded to Chief Gumunyu area where they arrested the accused on 11 June 2014. The accused implicated Chimika Bauti and led them to Mungate village, Domboshava. Chimika Bauti in turn implicated the accused. Chimika Bauti hanged himself at Rhodesville Police Station on 12 June 2014. The witness denied assaulting the accused. A warned and cautioned statement was recorded from the accused person by Detective Sergeant Muuya. The statement was not confirmed because the accused claimed that he had been assaulted. The court ordered that the issue be investigated. The accused’s wife told Police that she had been using the phone prior to it being sold. The post-mortem report on the deceased noted ante-mortem injuries on the left parietal area, the occipital area and bruises on both shoulders. There was subgaleal haematoma on the left temporal/ parietal area. There was depressed skull fracture on the left parietal bone, with brain damage, oedema and subarachnoid haemorrhage. The lungs had slight oedema. The cause of death was noted as subarachnoid haemorrhage, depressed skull fracture and head trauma. Having dismissed the accused’s application for discharge at the close of the state case the accused took to the witness stand. The accused is aged thirty three years and is married. He testified that on 25 May 2014 he left Mawere village, Nembudziya, Gokwe and travelled to Harare with his wife. They intended to sell some produce and thereafter buy some wares for resale back in the village. He used to come to Harare once a week depending on how he disposed of the wares he would have purchased for resale. The accused went to his sister’s place in Kambuzuma 6 after parting ways with his wife at Mbare. Because of the limited space, his wife went to her parents’ place in Domboshava. He took some of his produce to Kambuzuma. He spent two days there and would communicate with his wife by phone. HH 247/16 CRB 28/15 Some people who purchased his produce on credit promised to pay him on the 26th. On the 27th he prepared to return to the village, having got some of his money. On the night of that day he was in the company of his sister and her children. The sister’s husband had driven to Victoria Falls as he works for Delta Corporation. They usually retired around 9 p.m. as they would watch television. He would be the last to go to bed. On the 28th he left for Mbare. He wanted to board a particular bus because if he did not have enough fare the crew would allow him credit. He woke up at 6 a.m. and called his wife. He arrived at Mbare at 8.30 a.m. He met his wife and they went to where Zvishandwa buses parked. He paid fares and bought items for resale. As they waited for the bus to come he met a former class mate, Chimika Bauti. They had attended school at Warren Park 1 High School. This was their first time to meet each other since school. Although the accused had Chimika Bauti’s phone number they had not talked to each other in the past. Chimika offered the accused a phone for sale. The phone produced as an exhibit is not the one. He stated that the one he assisted in selling was black in colour and inscribed ‘Nokia C 3’. He did not suspect that the phone could be stolen. Chimika was elated to meet him and he offered the phone. The accused told the court that considering the phone and the price that Chimika offered ($20), he appreciated Chimika Bauti’s gratitude. He asked Chimika Bauti what he would use and he replied that he would get a cheaper phone to use. The accused’s money had run out save for money for food. The accused offered the phone to Tafadzwa Mashina for $30.00. As the transaction took place Chimika Bauti was standing with the accused’s wife. He had introduced his wife to Chimika Bauti. He had also discussed the issue of the phone with his wife, whether it would not give them problems. The wife had told him she knew where Chimika Bauti resided. Tafadzwa Mashina later brought the phone claiming that it was not functioning. The accused in turn took the phone to Chimika Bauti who spent some time with it before telling him that its memory was full. The accused claimed he did not see to whom Tafadzwa Mashina sold the phone. Although it occurred to him that Tafadzwa Mashina might resell the phone, his concern was the proceeds. He pocketed $10 and gave Chimika Bauti $20. Chimika Bauti then bought them some food and drink as a gesture of his gratitude. The accused told the court that he was arrested whilst at his rural home on 12 June 2014. His wife was arrested as well. They were both assaulted by the arresting officers. He identified one of them as detective Chatukuta. It is noted that when the accused appeared at HH 247/16 CRB 28/15 the magistrates’ court he complained about the assault. The court ordered that he be examined by a medical doctor. A report compiled by doctor Kajawo from Harare Central Prison noted healing lesions on the wrist joint consistent with tight handcuffs. He also noted whip marks on the posterior aspect of both thighs. Police officers should treat suspects humanely in conformity with the Constitution. It is not surprising that the state did not attempt to produce the warned and cautioned statement that was recorded from the accused person. The accused further stated that he was told he would not be released unless he confessed. When they came to Harare he told them where to find Chimika Bauti. They went to Mungate Business Centre. Through dictation by Police he called Chimika Bauti. A search was conducted at Chmika Bauti’s home and he was eventually found under the bed. Chimika Bauti was assaulted in his presence and he was cut by broken glass from a kitchen unit. Chimika Bauti’s wife was also assaulted. Concerning indications at the scene of crime the accused stated that Chimika Bauti is the one who gave directions. Together with Chimika Bauti they were then taken to the scene. During cross-examination the accused stated that he was born in Mvuma. He did his primary education in Gokwe. He knows his way in Harare. Concerning why Tafadzwa’s testimony that the accused offered the phone for sale as he had not enough money for bus fare was not challenged, he replied that he did not get the opportunity. He conceded that between 7.30 a.m. and 8 a.m he was at Mbare terminus. Asked why Bothwell’s evidence to the effect that he told them the phone belonged to his wife was not challenged, he again replied that he had no opportunity. Again, he said the same regarding why Tafadzwa and Bothwell were not challenged on their testimony that he is the one who rectified the problem with the phone. He also stated that he did not dispute that Chimika Bauti could have stolen the phone. The accused further clarified that he had last met Chimika Bauti at school in 2004. The last communication between them was a text message some time in 2014. He had last visited Domboshava in 2010. He did could answer directly whether he had been to Chimika Bauti’s home. He preferred to state that most of the time he would be away. When the accused attended school in Harare he resided in section 5, Kambuzuma. In her closing address Ms Chikangaise submitted that although there is no direct evidence against the accused, he should be convicted on the basis of circumstantial evidence. HH 247/16 CRB 28/15 She cited S v Blom 1939 A. D. 288, S v Cheresa 1981 (3) SA 353 and R v Sibanda 1965 RLR 363. She submitted that Bothwell and Tafadzwa corroborated each other. Regarding the defence of alibi she submitted that the state was able to rebut it as the accused was in possession of the deceased’s cell phone a few hours after it had been stolen and could not give a satisfactory explanation for its possession. Mr Chamisa submitted that the state’s case rests on the accused’s explanation. The state did not lead any evidence to plug the holes left by its witnesses. There was no evidence led on when the deceased’s cell phone was lost. No evidence was led on how many people attended to the deceased. The deceased’s bag was not accounted for. The accused’s alibi that he was at number 6 Jumbo Road Kambuzuma was not rebutted. On the facts of the case, Mr Chamisa submitted that the evidence must not admit of any hypothesis other than that the accused committed the offence. He made reference to S v Shonhiwa 1987 (2) ZLR 215, S v Vhera H-B-74-03, S v Muyanga H-H-79-13 and Mazvita Evelyn Fata v S H-H-420-13. In S v Muyanga supra Hungwe J expressed his views on circumstantial evidence as follows: “The law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no-one else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation by any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. See S v Shoniwa 1987 (1) 215 (SC) and the cases therein cited.” At pp 3-4 the learned judge went further to distinguish circumstantial evidence from direct evidence as follows: “Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the State says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the State relies upon HH 247/16 CRB 28/15 as part of its case or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused. In a circumstantial case, the State lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. But in a circumstantial case no individual fact can prove the guilt of the accused. Where the State’s case depends either wholly or in part on circumstantial evidence, then the court is asked to reason in a staged approach. The State first asks the court to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The court is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. Ultimately, the State asks the court to find, based upon the basic facts, that an accused person is guilty of the offence charged. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the State when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the State has established the guilt of the accused. It is important that the court approaches a circumstantial case by considering and weighing, as a whole, all the facts found established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt. The correct approach is first to determine what facts are established by the evidence. The court must then consider all of those facts together as a whole and ask whether it can be concluded, from those facts, that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the State’s circumstantial case fails because there is no proof of guilt beyond reasonable doubt. But if the court finds that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before it can convict the accused, it must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the State says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because there is no proof beyond reasonable doubt of the accused’s guilt.” In S v Shoniwa supra, although the case involved conviction for murder where the body of the deceased was not found Dumbutshena CJ had this to say about circumstantial evidence at 224: “These cases emphasise that where the evidence of death is circumstantial it must be cogent and compelling so as to convince the jury or court that the facts cannot be accounted for on any rational hypothesis other than murder. See also Halsbury' Laws of England 4 ed Vol 11 at para 361, where it is stated that generally it seems that a defendant cannot be convicted of murder or culpable homicide: HH 247/16 CRB 28/15 "unless either the body of the alleged victim is found or there is evidence, direct or circumstantial, of the death of the person said to have been killed ... If the evidence of death tendered is circumstantial it must be so cogent and compelling as to convince the jury that the facts cannot be accounted for on any rational hypothesis other than murder." In short the authorities I have cited above allow of a conviction on circumstantial evidence even in the absence of a confession if that evidence is consistent with no other reasonable inference than that the victim is dead and that he was murdered by the accused. See Halsbury, supra, para 1183. What is clear from the authorities is that circumstantial evidence must be narrowly construed in order to minimise false incrimination. As was said in S v Marange and Ors 1991 (1) ZLR 244 (SC) at 249: “Before I answer this question, I wish to draw attention to the dangers inherent in drawing conclusions from circumstantial evidence. Lord Normand observed in Teper v R [1952] AC 480 at 489 that: "Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast doubt on another. Joseph commanded the steward of his house, 'put my cup, the silver cup, in the sacks' "mouth of the youngest," and when the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference." The evidence presented before this court shows that a day after the deceased was attacked by unknown persons, the accused was in possession of the cell phone belonging to the deceased. Although the accused now resided in Gokwe, he attended school in Harare. The accused’s defence is that on the day and time the deceased was attacked, he was at his sister’s home in Kambuzuma. The state would have been expected to rebut this alibi. However, there is nothing to suggest that this defence was raised at the time of the accused’s arrest. If that had been the case, the state had an obligation to have probed that alibi. As matters stand, this defence arose at the time of trial and one could not have expected the state to open further investigations. Botwell Simenti and Tafadzwa Mashina gave their evidence in a forthright manner. They did not seek to exaggerate anything. Incriminating aspects of their testimonies were not seriously challenged notwithstanding that some aspects of their testimony were not in their sworn statements. These are that the transaction regarding the cell phone took place during the presence of the accused’s wife. The accused claimed that the cell phone was used by his HH 247/16 CRB 28/15 wife and the wife confirmed so. When the cell phone failed to function it is the accused who rectified it. There was no other person in the company of the accused. The transaction took place by the bus. In fact, it was never put to the two witnesses that the accused would dispute telling them that the cell phone belonged to his wife. It was also not put to them that the accused would deny telling Tafadzwa that he was selling the cell phone because they had inadequate bus fare. Even though there was no onus placed on the accused person, it is necessary to scrutinise his explanation for possessing the cell phone. Whilst conceding that he took the phone to the two state witnesses, he claimed that Chimika Bauti remained standing close by with his wife. The two state witnesses could not have failed to see Chimika Bauti and limited their observation to the accused’s wife. The probabilities are that Chimika Bauti was not present during the transaction. Even the coincidental reunion between the accused and Chimika Bauti appears far- fetched. Assuming that Chimika Bauti was so pleased at meeting his old school mate, how believable is it that he would celebrate such a reunion by disposing of his cell phone. And the manner of disposal does not make sense. Chimika Bauti had no guts to sell the cell phone himself. He then gave the accused to sell whilst he remained in the company of the accused’s wife. The accused then put a mark-up of $10 which he did not disclose to Chimika Bauti. If Chimika Bauti was so generous as to dispose of his cell phone in order to please his old school mate, would he have been concerned that the accused sold it for $30 instead of $20? In any event, Chimika Bauti ended up buying food for the accused and his wife. A cumulative assessment of the factors surrounding the accused’ possession of the deceased’s cell phone can only lead to one conclusion, that the accused had something to do with its owner’s demise. It matters not that no evidence was led to establish when the cell phone was last used by the deceased. As was held in S v Isolano 1985 (2) ZLR 62 (SC), at 64-65: “In my view the degree of proof required in a criminal case has been fulfilled. In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), Lord Denning described that degree of proof at 373H as follows: . . . and for that purpose the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the HH 247/16 CRB 28/15 community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable , the case is proved beyond reasonable doubt, but nothing short of that will suffice. See Hoffman and Zeffertt: South African Law of Evidence 3rd ed 409-410.” And in R v Mlambo 1957 (4) SA 727 at 738 MALAN JA had this to say: “In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.” In all probabilities, both accused and Chimika Bauti must have committed the offence together. It is unfortunate that Chimika Bauti is said to have committed suicide. Hopefully, the circumstances surrounding Chimika Bauti’s death were fully probed in light of allegations of assault by Police officers involved in the investigations. This was a killing committed in the process of committing robbery. The accused must have realised the real risk or possibility of causing death but was reckless as to the consequences. He is accordingly found guilty of murder in terms of s 47 (1) (b) of the Code. National Prosecuting Authority, Legal Practitioners for the state The Chambers: Advocates of Zimbabwe, accused’s legal practitioners