MAVANGIRA
J: The appellant was charged firstly with contravening s 45(1) (a) as read with
s 128(a) of the Parks and Wildlife act [Cap
20:14] and secondly contravening s 28(1) (a) of the Criminal law
(Codification and Reform) Act [Cap 9:23].
He pleaded not guilty to both counts but was convicted of both after a trial.
He was sentenced on the first count to US$2000 or 8 months imprisonment with
labour. On the second count he was sentenced to US$40 or 6 days imprisonment.
In addition he was sentenced to 2 years imprisonment which was wholly suspended
for 5 years on condition that during that period he does not hunt for specially
protected animals for which upon conviction he is sentenced to imprisonment
without the option of a fine.
The
facts as outlined by the State before the trial court are as follows: On 9 May 2009
the appellant and four accomplices three of whom are now deceased entered
Malilangwe Trust Estate in Chiredzi to hunt rhinoceros. The appellant who was
driving a Toyota Hilux registration number ABE 2449 dropped off his accomplices
about 3 km into Malilangwe Trust Estate. The accomplices were to pursue the
spoor of rhinoceros which they intended to shoot and kill for their horns.
A
team of police detectives and game scouts who had observed the appellant
dropping off his accomplices then kept the accomplices under surveillance. The
appellant's accomplices and the detectives and game scouts then met in the
bush. As the detectives and the game scouts tried to arrest the poachers the
poachers shot at them and a heavy exchange of gunfire ensued. Three poachers
were shot dead and one escaped. The police detectives recovered two rifles, a
303 rifle serial number CA2416 and a 306 rifle serial number 7D 3888 fitted
with a telescope, a 303 gun bag, 52 live rounds of ammunition and an axe.
The
appellant was arrested by the police detectives at about 18.30 hours whilst
parked within the Malilangwe Trust area. They carried out a search and
recovered two live rounds of ammunition behind the seat. The deceased poachers'
jackets were also found in the appellant's truck.
In
his defence outline the appellant stated as follows: He said that he denied the
allegations. On Saturday 9 May 2009 in the morning one Albert Svuure approached
him and asked that he escort him to Mvuma for the purpose of collecting his
colleagues so that they could proceed to Malilangwe Trust in order to poach.
Svuure said that he and his friends wanted to hunt rhinoceros and that they
would pay him the sum of US$500 for providing them with transport. He agreed. Albert
then took two guns and an axe which he said they were to use during the
poaching. Albert placed these at the back of the front seat. They then
proceeded to Mvuma where they collected one Mhofu who was himself in the
company of a friend. They then proceeded to Chiredzi via Masvingo. In Chiredzi
they went to Croco Motors where Albert and Mhofu went away for about ten to
fifteen minutes. When they returned they were in the company of a man clad in
blue overalls. The man in the blue overalls sat in the front passenger seat and
gave directions to the appellant as he drove them all to Chiredzi. From
Chiredzi turn-off they traveled for about 30 km along the Chiredzi-Mutare road.
The man in the blue overalls then advised him to turn left and follow a
secluded path into a bushy area. After driving for about one to one and half
kilometers into the bush the appellant was instructed to stop. The three men
took their guns and advised him to go back to Chiredzi and to return to collect
them at around 19.00 hours in the evening. They then went into the bush. When
the appellant returned to the same place in the evening to collect them he was
arrested by the Police.
The
appellant stated that he knew nothing, had not participated in the criminal
activity in any way and that the ammunition found in his motor vehicle was left
there by Albert Svuure.
The
prosecutor then applied to the court to seek formal admissions from the
appellant. He indicated to the court the admissions that he seeking from the
appellant. The trial magistrate then explained the provisions of s 314 of the
Criminal Procedure and Evidence Act [Cap 9:07]
to the appellant and advised him that he is not obliged to make any admission
and that if he does the substance of the admission will be taken as proven
fact(s). The following are the submissions which were sought from and made by
the appellant: Firstly, that he was hired by Albert Svuure and his friends to
drive them to Malilangwe Trust Estate in Chiredzi on the day in question.
Secondly, that he drove them to Malilangwe Trust Estate knowing that they were
going to hunt rhinoceros. Thirdly, that upon arrival he drove them deep into
Malilangwe Trust Estate. Fourthly, that later in the day at around 19.00 hours
he then proceeded to collect or pick them up. Fifthly, that he had been
promised a payment of US$500 for his services from the proceeds of the hunting
expedition. Sixthly, that when he went with Albert Svuure and company to
Malilangwe Trust Estate he knew that they were going to hunt for rhinoceros and
that he knew that it was unlawful. The seventh admission sought and made was
that when he took them from Mvuma to Malilangwe Trust Estate Albert and his
friends had guns and ammunition. The eighth admission sought by the State and
made by the appellant was that two rounds of ammunition were subsequently
recovered from his motor vehicle Toyota Hilux registration number ABE 2449. The
ninth and last admission sought and made was that when he was subsequently
arrested along the Chiredzi-Mutare road he was still in the premises of
Malilangwe Trust Estate.
After
the accused had made the admissions the prosecutor closed the State case. In
his evidence in chief the appellant stood by his defence outline and stated
further that he was only hired by Albert Svuure to take him to Chiredzi where
he and his colleagues would hunt for rhinoceros. In return for transporting
them he would subsequently be paid a fee of US$500. He reiterated his denial of
hunting rhinoceros emphasizing that it was Svuure and his friends who had
hunted and not himself. He said that the rounds of ammunition found in his
motor vehicle were left in there by Svuure and his friends and not by him.
During
cross-examination by the prosecutor the appellant among other things, admitted
that when he left Mvuma for Chiredzi he knew that the business for which he had
been hired was unlawful. He was told the full nature of the transaction whose
purpose was to hunt rhinoceros. He said that he knew at the time that hunting
of rhinoceros is illegal but that he proceeded to assist or abet them because he
only wanted the money. When it was put to him that he had facilitated the
transaction and that he was therefore criminally liable his response was that
he was not involved and was only after money. The appellant then closed his
case.
The
appellant has appealed against his conviction on the grounds firstly, that the
lower court misdirected itself by convicting the appellant solely on admissions
that had been improperly and unprocedurally led and initiated by the
prosecution. Secondly, that the lower court erred at law in not assisting the
unrepresented appellant on the effect "legally and procedurally of the forced
submissions". Thirdly, that the appellant having only admitted to providing
transport to the perpetrators the lower court "erred in relying on admissions to
lable (label) Appellant an accomplice". The final ground of appeal is that the
lower court misdirected itself in convicting the appellant on the second count
of possessing ammunition when the court was aware that the appellant did not
know of the bullets left behind the seat.
In
his oral submissions Mr Debwe for the
appellant conceded that from a perusal of the record it is clear the appellant
was properly advised by the court of the legal effect of him making the
admissions that the State was seeking. He also submitted that as no hunting
took place because of the exchange of fire that then ensued and resulted in the
unfortunate death of three members of the gang, the appellant was rather a
conspirator and not an accomplice to hunting.
There
is no evidence that any hunting took place. The would-be hunters met their
demise before they could carry out their planned mission. The basis for the
appellant's prosecution appears to be a contention that he was part and parcel
of the planned scheme to hunt rhinoceros in Malilangwe Trust Estate. That he
was a willing participant is clear even on his own version of events. He was
advised in no uncertain terms what the planned expedition entailed and he was
clearly told what his role in the whole scheme was. He agreed to perform his
own part of the scheme well knowing that the whole intended operation was
illegal. We therefore agree with Mr Debwe
that the appellant was a conspirator in the intended scheme or expedition.
Section
273 of the Criminal Law (Codification and Reform) Act provides as follows:
"A person
charged with any crime may be found guilty of-
(a)
threatening, incitement, conspiracy or
attempting to commit that crime or any other crime of which the person
might be convicted on the charge; or
(b)
assisting a perpetrator of that crime or of any other
crime of which the person might be convicted on the charge. (emphasis added)
In casu, there was no hunting but there
certainly was a conspiracy to hunt. The appellant, with the full knowledge of
the proposed operation and with the full knowledge that the planned operation
was illegal, willingly agreed to be part of and to perform a crucial part in
the unlawful affair. The Concise Oxford dictionary defines the word
"conspiracy" in the following terms:
"act of conspiring; combination for
unlawful purpose, plot"
and a "conspirator" as
"one
engaged in a conspiracy".
In S v Beahan 1991 (2) ZLR 98 at 118C -E GUBBAY
CJ as he then was stated:
"In general a
conspirator is liable for the crime perpetrated by his co-conspirators. But
where he has effectively withdrawn from the conspiracy, he does not remain
liable for the commission of any subsequent criminal acts. The terms
"withdrawal" B and "dissociation" which are often used in
this context of the law, refer to voluntary action by a conspirator which is
legally effective to terminate his relationship to the conspiracy. (emphasis
added)
The dominant
policy of the law in allowing such a defence is to encourage the conspirator to
abandon the conspiracy prior to the attainment of its specific C object and, by encouraging his withdrawal, to
weaken the group which he has entered.
In
R v Chinyerere 1980 ZLR 3 (AD) at 8E;
1980 (2) SA 576 (R AD) at 579G;
LEWIS JP said
that: D
". . . a
conspirator can withdraw from the enterprise even at the last moment, and in
the event of his withdrawal he is entitled to his acquittal on the main charge,
and is liable to be convicted only of the offence of conspiring to commit the
crime in question."
(emphasis added)
And at 121D -F:
"I D respectfully
associate myself with what I perceive to be a shared approach, namely, that it
is the actual role of the conspirator which should determine the kind of
withdrawal necessary to effectively terminate his liability for the commission
of the substantive crime. I would venture to state the rule this way: Where a
person has merely conspired with others to commit a crime but has not E
commenced an overt act toward the successful completion of that crime, a
withdrawal is effective upon timely and unequivocal notification to the
co-conspirators of the decision to abandon the common unlawful purpose. Where,
however, there has been participation in a more substantial manner something
further than a communication to the co-conspirators of the intention to dissociate
is necessary. A reasonable effort to nullify or frustrate the effect of his
F contribution is required. To the
extent, therefore, that the principle enunciated in R v Chinyerere supra at 8E is at variance, I would with all
deference depart from it."
I
am aware that there is no debate in the instant matter as to whether or not the
appellant withdrew or dissociated himself from the enterprise. He in fact
played a prominent though complementary role that was meant to ensure the
successful completion of the illegal mission. As fate would have it his
intended role of providing essential and necessary transport out of the trust
area was overtaken by events. But that is of no immediate relevance to his
criminal liability. The above dicta are cited merely for their assistance in
exposing or clarifying how the law views a conspirator. Indeed when the
provisions of s 273 of the Criminal Law (Codification and Reform) Act were
brought to Mr Debwe's attention he indicated
that he had not had regard to it earlier but that on his reading of it, it was
clear that the appellant's conduct and participation placed the appellant
squarely within its ambit. We agree with him.
Although
in written submissions Ms Dube for
the State did not support both the conviction and the sentence, in her oral
submissions she revised her stance and indicated that she had adopted a very
narrow view of the facts but was now of the view that both the conviction and
sentence were in order and there was no justification for any interference with
either.
Although
submissions were made regarding the order of forfeiture, there was no appeal
against sentence. In any event no valid justification was placed before us why
we should interfere with it. Neither was any misdirection on the part of the trial
court in this regard placed before us. The only pertinent observation that we
made was that the appellant was fortunate in that he got off with a more
lenient sentence than the case otherwise warranted.
In
the result and for the above reasons the appellant's appeal is dismissed.
OMERJEE J, agrees.......... .
Muzenda &
Partners, appellant's legal practitioners.