3
HCC 34/24
HCCR 1526/23
CHNR 49/23
THE STATE
versus
KNOWLEDGE MACHAZI
HIGH COURT OF ZIMBABWE
MUZOFA & BACHI MZAWAZI JJ
CHINHOYI, 12 April 2024
Criminal Appeal
M. Magama, for the Appellant
K. Teveraishe, for the Respondent
MUZOFA J: The appellant was convicted on a charge of rape after a trial. The appellant aged 62 years at the time is alleged to have raped the complainant, an elderly woman aged 72 years by then in contravention of s65 of the Criminal Law Codification and Reform Act [Chapter 9:23].
Background Facts
The factual background is largely not in dispute. On the 12th of February 2023 the complainant was fast asleep in her bedroom at Mushamukuru Village, Mutorashanga.
Around 0200 hours an intruder stealthy pushed her door and the wench fell, making a squeaky noise jerking the complainant from sleep. The complainant quickly reacted, lit her torch to identify the intruder and behold she saw a stack naked man who she identified as the appellant.
The complainant asked what the intruder wanted and for whatever reasons she also inquired whether he was not married. The two wrestled, the intruder tried to run out of the room and the complainant followed outside. Outside the intruder tripped her and she fell down on her tummy. All the time she cried for help but no one came to her rescue. He then raped her twice and immediately thereafter she proceeded to her sister’s place where she reported her ordeal. She identified the intruder as the appellant.
The appellant was arrested the following morning.
The Trial Proceedings
The State led evidence from the complainant, her sister who received the report from the complainant and the police officer who arrested the appellant.
The appellant denied the offence completely. He said he was asleep with his wife on the day. He was surprised the following day when he was arrested. He called his wife to give evidence in his defence case to confirm that he was home.
After considering the evidence, the trial court accepted the State witnesses’ evidence. It particularly considered that the complainant knew the appellant before the commission of the offence. That she switched on her torch and had sight of her assailant. In such circumstances there was no danger of mistaken identity. It dismissed the appellant’s alibi as an afterthought defence.
It then convicted the appellant and sentenced him to 6 years imprisonment after considering the appellant’s age as highly mitigatory.
The Grounds of Appeal
Dissatisfied by both the conviction and sentence, the appellant appealed. The four grounds of appeal raise two issues for determination in the appeal against conviction.
i. whether the appellant was positively identified
ii. whether the appellant’s defence was improperly dismissed.
In respect of sentence, that it was excessive in the circumstances.
The submissions before the court
Ms Magama opted to abide by the heads of argument. This we believe was due to the response by the State, it did not oppose the appeal against the conviction.
The main issue raised by the appellant in the heads argument is that no formal identification parade was conducted. According to the defence, a proper identification was necessary in view of the fact that the offence was committed at night, it was dark, it was after some rains and the complainant was advanced in age and her eye sight could have faltered. Also, that the appellant raised the defence of an alibi which was not controverted by the State.
Both the State and the defence cited leading cases on how a court must guard against mistaken identity. The common thread in those cases and many more emphasize that where the parties are unknown to each other, the court must look to evidence on how the assailant was identified. The identification evidence must be tested against all the evidence against the accused.
The Law
As already stated, the court was referred to a line of cases where the issue of identification was addressed. I cite the passage relied on by both the State and the appellant in S v Dhliwayo and Another 1985 (2) ZLR 101 (SC) that: -
“Where an identifying witness has been shown to be careful and truthful, it is not always necessary for the witness to be asked to give details of every feature by which he identified the accused. Evidence of identification, however, must be treated with some caution and the reliability of the witness’s evidence must be tested against the cumulative weight of such factors as lighting, visibility and eyesight, his proximity to the accused: his opportunity for observation, the extent of his prior knowledge of the accused, the accused’s features and appearance, the result of an identification parade and the accused’s evidence”.
Also the case of S v Ndhlovu and Others 1985 (2) ZLR 261 (SC) it was similarly held that the positive assurance of identification by a single honest witness was not enough. The court went on to say that: -
“The possibility of a mistake occurring in the identification, especially where the witness has not known the person previously, demands that the greatest circumspection should be employed.’
Two scenarios often present themselves. Where the witness knew the accused prior to the commission of the offence, there must be evidence on how long the witness has known the accused. It is also important to establish how the witness recognised the accused.
The second scenario is where the witness is unknown to the witness. The standard goes up and it is more onerous there must positive identification by the witness. The lighting, the time which the witness spent with and distinct features that the witness identified the accused with become very critical. Where the evidence on identification is weak or questionable there must be corroboration from evidence aliunde.
Analysis
Identification
In this case Rhoda the complainant, knew the appellant for many months. She used to see him driving a tractor. She did not know his name. At times he would talk to her son and to her, Infact Rhoda identified that appellant was a driver at Muwanga Farm employed by Chireni. This was not disputed.
When the appellant cross examined her, he did not deny that he was known to her. He drifted to peripheral issues on where he spoke to her son whether at her house or field. In my view what is important is that the two were familiar with each other. Appellant did not deny that at some point he went to Rhoda’s field, spoke to her when he was looking for Chireni’s stolen pipes.
This means the issue is whether Rhoda recognized the accused on the night. We were referred to the sentiments in S-v-Duri HH 410/23 where the court noted that identification based on fleeting glance under extremely stressful circumstances. In that case of murder, the key witness was unknown to the assailants. In his evidence he did not give any form of description of any of the assailants. To say the least there was no identification at all. The court had no option but to find the identification inadequate. The facts in that case are distinguishable to the facts in this case.
Now the circumstances under which the appellant was identified, are crucial. There is no doubt that they were stressful because a heinous crime was about to be committed against her. In the bedroom the appellant was said to be naked. She lit her torch and saw the bald head. The appellant did not deny that he had a bald or shaven head then. She also recognized his face. Nothing more was said about any other features. For the appellant it was submitted that the identification based on the bald head was not conclusive since the appellant could not be the only person who was bald headed then. It was necessary for the court to get more features on the appellant’s physical appearance. This observation is correct considering that the complainant said she knew the appellant. She could have provided more information.
It is common cause that on the night the offence took place it rained. When the complainant went to report the matter to her sister, the sister observed that she was dirty. In respect of the appellant, the complainant said he was naked. So we assume that when the appellant raped the complainant he was naked. We reckon he would not have had time to dress up after his failed attempt in the bedroom. To our minds the complainant would know nothing about the appellant’s clothes on the day. Surprisingly she commented on his clothing, the following exchange during cross examination of the complainant is revealing;
Q. It was raining, my clothes were not muddy?
A. You changed your clothes.
Q. At police you indicated that the clothes I was wearing were the ones I was wearing?
A. You deny but that is what you did. I told you if you killed me, you will face my avenging spirit.”
The complainant failed to face head on the issue of appellant’s clothes. In between the lines it appears the complainant must have seen the appellant in clothes. She did not insist that the appellant was naked. On the other hand, she did not dispute what she had told the police about the appellant’s clothes. In our view as long as the complainant knew that that the appellant changed his clothes, her truthfulness on the issue becomes questionable.
The complainant failed to describe to the court how she recognized the appellant. That taken together with the issue of clothes where she dithered, it means the identification is not conclusive. There must be evidence aliunde to corroborate it.
There is evidence that the appellant tried to escape from the arresting officers. We considered whether that could point to a guilt mind. We do not think so because at the time the appellant had not been advised of the offence. The two officers had simply invited him to accompany them to his employer. Nothing turns of the issue.
The alibi
In respect of the alibi, the position of the law is settled. While there is no onus upon an accused to prove their alibi/defence, an accused who raises the defence of alibi must of necessity fully disclose its details to enable the state to fully investigate it. See S v Chimusoro and Another HH-699-15; S v Magomba HB-24-10. The timing when the defence is raised is important.
Both the police and prosecution fall into an error in such cases. We have pointed out times without number that the State must establish at what stage the defence of an alibi is raised. It must be raised early enough for the Police to investigate it. At prosecution level the State must establish when the defence was raised. The earliest time to raise the defence is when the warned and cautioned statement is recorded. The statement must be produced to establish if the accused raised the defence or not. The investigating officer must comment on the defence. Where it is established that the accused did not raise the defence earlier on but raised it during trial, the State cannot be expected to disprove it. An appropriate inference can be made against the accused. In most cases the prosecution does not address these issues leaving the court to grapple with the defence.
In this case it was not established at what stage the defence was raised. In such circumstances the issue is resolved in the appellant’s favour. Faced with such inadequacy in prosecution the trial Court simply dismissed the alibi which was a misdirection. There was no evidence to disprove the alibi. Instead the appellant called his wife to prove his defence. No onus was on the appellant to prove his defence.
It is possible to dismiss the defence of an alibi even where the State has not investigated it. This can present itself where for instance the accused is caught committing the offence or where there is overwhelming evidence that he committed the offence which allows for no room that he could have been somewhere else. In this case there was no conclusive evidence that the appellant was the intruder at the complainant’s bedroom. The concession by the State was therefore properly made.
Accordingly, the appeal is allowed in its entirety. The conviction and sentence by the court aquo is set aside and substituted by the following,
‘Not Guilty and acquitted.’
Murisi and Associates, appellant’s legal practitioners.
National Prosecuting Authority, respondent’s legal practitioners.
Bachi – Muzawazi J Agrees