MATHONSI J: The
Appellant was convicted by the Magistrates Court of contravening section 89 of
the Criminal Law (Codification and Reform Act), [Chapter 9:23] (Assault) and
sentenced to a fine of 2 million Zimbabwe dollars or 10 days imprisonment. A further 6 months imprisonment was suspended
on condition of good behaviour.
He appealed against both conviction and sentence on the following
grounds.
“AD CONVICTION
(1) The court a quo erred in
law in convicting the Appellant based on the evidence of a single witness who
clearly has an interest in the matter.
(2) The court a quo erred in
finding that the complainant was a credible witness notwithstanding that there
was no corroboration of her evidence, especially in respect of the injuries she
alleged sustained.
(3) The court a quo
misdirected itself in finding that the complainant's recitation of alleged
previous incidents amounted to similar fact evidence which corroborated the
complainant's evidence.
(4) The court a quo misdirected
itself in finding that irrelevant and immaterial issues such as that she had no
maid, no messenger, and the Appellant travelled on holiday alone without the
complainant, that she looked after the disabled child, amounted to
corroboration of the complainant.
(5) The court a quo erred in
law in assessing complainant's evidence in not giving regard to the obvious
instability in her character which shows her to be paranoid and suffering from
a persecution complex.
(6) The court a quo misdirected
itself in finding that the complainant was justified in not seeking medical
attention in that the Appellant would influence the subsequent medial report to
be compiled by a professional medical person.
(7) The court a quo erred in
law in not giving sufficient weight to the inordinate delay in not reporting
the alleged assault, and the reasons for the change in the complainant's stance
and the belated report.
(8) The court a quo erred in
law in not giving sufficient weight to the fact that the state did not adduce
any evidence from the Police to show that on the night of the alleged assault
complainant did make a report, and the police officers attending to her did
observe injuries on the complainant?”
This is a case in which the state led evidence from a single witness,
the complainant with absolutely no other supporting evidence or corroboration,
not even a medical report to support the alleged assault.
In addition to that, the complainant did not immediately report the
assault, if she did nothing was done to prosecute the Appellant for 7
months. No cogent explanation for the
delay was given with the complainant telling the trial court that she initially
forgave the Appellant and did not press charges but changed her mind when,
months later, the Appellant assaulted her again assisted by an employee Kuda.
It is improbable that Appellant would have been assaulted on this
occasion thereby forcing her to resuscitate an old case instead of reporting
the then current assault. It is in that
light that all the liberal allegations of assault and abuse made by the
complainant must be viewed.
The entire evidence of the complainant appears suspicious and
unreliable. She passes out as someone
given to flights of the imagination which comes out clearly when she claims
that Appellant assaulted her with the assistance of the maid when at the same
time she claims that there was no maid and that she was always alone.
It is surprising that the trial magistrate accepted all the uncorroborated evidence of the complainant
hook, line and sinker to the extent of making findings that all that she was
saying in court was “common cause” even when all of it was being challenged by
the Appellant.
While the trial court is entitled to convict on the single evidence of
the complainant, for that to happen the evidence must be clear and satisfactory
in every material respect. To the extent
that the complainant had an interest to serve it being common cause that the
parties were fighting over occupation of the matrimonial house, the learned
trial magistrate was required to approach her evidence with extreme caution and
should have sought corroboration of her evidence. See S v
Zimbowera 1992(1) ZLR 41(S) at 42 E-G; S
v Shoniwa 1990(1) ZLR 311(S) and R v Ellis 1961 R & N 468 (FS).
The evidence of the complainant was far from being clear and was
certainly not satisfactory. It was generally
incoherent and in answer to simple questions she went on a tirade of irrelevant
and extremely unhelpful stories like the claim that Appellant goes on expensive
holidays alone, does not allow her to have access to vehicles and that he has
not hired a messenger for her.
Mr James
who appeared for the Appellant argued that not only was complainant vindictive
but she also had a motive to benefit herself and as such her evidence should be
treated with caution. I am inclined to
agree with Mr James because one can
assign no other reason for the complainant's failure to seek medical treatment
if she had injuries and to press charges of assault some 7 months after the
alleged offence was committed. It is not
clear why everybody including senior doctors like Dr Omara, nurses and
employees would turn against her, insult her at every turn and some assault her
as she claims.
There is substance in Mr James's
submission that complainant exhibited some instability in her character. Indeed she may have been suffering from a persecution
complex. The learned trial magistrate
misdirected herself in accepting her uncorroborated evidence as gospel truth
and holding that her claims of alleged previous assaults were similar fact
evidence pointing to the guilt of the Appellant. Mr Hove
who appeared for the state conceded, and in my view rightly so, that in light
of these misdirections, the conviction could not be sustained.
In the result, the conviction of the Appellant is set aside and in its
place is substituted the order that the Appellant be and is hereby found not
guilty and acquitted.
Mathonsi
J................................................................
Cheda J
agrees.........................................................
James Moyo- Majwabu and Nyoni, appellant's legal
practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
