CRIMINAL
APPEAL
MAWADZE
J:
This
is an appeal in respect of both the conviction and sentence.
The
appellant was convicted after a protracted trial by the Magistrate
sitting at Chivi on 1 July, 2019 and he was represented by Mr
Chivasa.
The
appellant was convicted of fraud as defined in section 136 of the
Criminal Law (Codification and Reform) Act [Cap
9:23]
and sentenced to 4 years imprisonment of which 1 years imprisonment
was conditionally suspended for 5 years on the usual conditions of
good behaviour. A further 1 year was suspended on condition the
appellant paid restitution in the sum of US$471 and RTGS133.21
through the Clerk of Court at Chivi on or before 31 August 2019. The
appellant has to serve an effect sentence of 2 years imprisonment.
At
the time of the hearing of the appeal
Mr Chivasa
submitted that the appellant who has been in prison for about 4
months has already paid the restitution in the sum of US$471 and
RTGS133.21.
The
facts of this matter which give rise to this appeal are largely
common cause save for the appellant's role in the commission of the
offence.
The
appellant was jointly charged with three other accomplices
Cordination Magavhe aged 28 years residing at Chivi Growth Point,
Babra Masvosvere aged 20 years residing in Beitbridge and Shelter
Ezra aged 28 years residing at Chivi Growth Point. The other three
accomplices Cordination Magavhe, Babra Masvosvere and Shelter Ezra
pleaded guilty to the charge and each was sentenced in the same
manner as the appellant.
The
appellant is the only one who denied the charge hence the matter
proceeded to trial.
The
offence of fraud in this matter was committed with surgical
precision. The three accomplices Cordination Magavhe (Cordination),
Barbra Masvosvere (Babra) and Shelter Ezra (Shelter) together with
the appellant are said to have hatched a plan to defraud Mukuru.Com
Money Transfer Company branch situate inside N. Richards Wholesale at
Chivi Growth Point.
As
already said the only disputed fact is the appellant's role or
involvement in this criminal enterprise as appellant denied any role
or knowledge of the commission of the offence.
Cordination
as his name denotes was the co-ordinator of this whole criminal
enterprise as he was an ex-employee of Mukuru.Com Money Transfer
Company at Chivi Growth Point. He provided a clip board, counterfeit
audit papers titled Mukuru.Com, 2 T-shirts inscribed “Mukuru Send
Money Home” and some cash box keys which he had stolen while
employed at Mukuru.Com Transfer Company branch situate at Chivi
Growth Point. It is Cordination who briefed the other accomplice of
the tactics to be employed in committing the fraud.
Babra
was assigned the prominent role of executing the fraud and stealing
of the money at Mukuru.Com Transfer Company branch at Chivi Growth
Point. This is probably because she was the only one who was not a
resident at Chivi Growth Point as she resides in Beitbridge and was
therefore not known at Chivi Growth Point.
The
appellant's role, which he disputes, is that he provided a laptop
from which the counterfeit Mukuru.Com fraudulent documents were
generated and acted as a sentinel during the execution of the offence
by Babra.
Shelter,
again as her name denotes provided shelter for the culprits as the
plan to commit this fraud was polished up at her residence at Chivi
Growth Point, she offered accommodation to Babra and provided a
handbag Babra used.
The
fraudulent plan was executed in the following manner.
On
11 January 2019 Babra proceeded to the Mukuru.Com Company branch at
Chivi Growth Point inside N. Richards Wholesale where she posed as
auditor from Mukuru.Com Company who had come to carry out official
duties at the branch. She was wearing the t-shirt inscribed “Mukuru
Send Money Home” was carrying a handbag and a clipboard attached
with the fake or counterfeit Mukuru.Com Company documents.
Babra
carried herself as an Auditor from Mukuru.Com Company Head Office in
Harare who had come to perform her duties at the Mukuru.Com Company
branch at Chivi. She approached the complainant Raviro Chirape a
cashier employed at the Mukuru.Com Company branch at Chivi Growth
Point. Babra then proceeded to carry out “an audit” inside the
booth at Mukuru.Com branch at Chivi Growth Point and Raviro Chirape
believed Babra was an auditor. Babra proceeded to check the financial
books and cash on hand in order to carry out the reconciliation. At
the material time there was US$5,475 and $533 bond notes which Barbra
counted with Raviro Chirape.
After
about an hour Barbra asked the cashier Raviro Chirape to go and buy
for her some water to drink. When the cashier went to buy the water
Babra simply took the money at the Mukuru.Com Company branch. After
the cashier returned Babra later left with the cash and caused the
cashier to complete fake audit forms which showed that Babra had
carried out audit duties unaware that Babra had stolen the money in
her absence.
The
culprits then regrouped at Shelter's house and proceeded to
Zvishavane to share the loot.
The
matter came to light the same day when Raviro Chirape the cashier at
Mukuru.Com Company branch at Chivi Growth Point later realised that
all the money in her possession had been stolen.
The
CID details from Mashava later on investigated the matter and on the
same day arrested Cordination and the appellant with the help of CCTV
at N. Richards Wholesale at Chivi Growth Point.
Upon
their arrest CID details recovered United States dollars from
Cordination and the appellant. Further an HP Laptop bearing serial
numbers of counterfeit documents used by Babra when she
misrepresented herself to Raviro Chirape, the cashier at Mukuru.Com
Company Branch at Chivi Growth Point as an auditor were recovered.
Thereafter
Cordination led to the arrest of Babra who had returned to Beitbridge
and also accused Shelter.
The
amount of US$760, $67 bond notes was recovered from Babra and
US$1,800 from Shelter. Both the appellant and Cordination were found
with some cash.
Further
the t-shirt inscribed “Mukuru Send Money Home” the clipboard, a
purse, the attire Babra was wearing posing as an auditor were
recovered at Shelter's residence thrown inside a blair toilet.
The
total cash stolen is US$5,475 cash and $533 bond cash. The amount
recovered is US$3,589 cash and $75 bond cash.
The
appellant gave a very lengthy defence outline covering 23 paragraphs.
In
brief the appellant denied conniving to commit the fraud with
Cordination, Babra and Shelter. The appellant said the only person he
knew was Cordination and he was not known to Babra and Shelter. The
appellant denied taking any part in the commission of the offence. He
denied playing any role in the commission of the offence or getting
any share of the loot.
The
appellant however admitted to the following facts which are;
(a)
that he is a very close friend of Cordination an ex-employee of
Mukuru.Com
Company branch at Chivi.
(b)
that he is well known to the cashier, Raviro Chirape, at Mukuru.Com
Company branch at Chivi Growth Point as he frequents N. Richards
Wholesale or transacting at the said Mukuru.Com Company branch.
(c)
that on the day in question on 11 January 2019 he indeed was at N.
Richards Wholesale Chivi Growth Point where the Mukuru.Com Company
Branch is situated hence his images were captured on CCTV. However,
the appellant said his mission at those premises was not to carry out
any surveillance in furtherance of any criminal conduct but to meet a
female friend Eustina Mbaradze and for shopping purposes inside N.
Richards Wholesale.
(d)
that on the way into N. Richards Wholesale he passed by the
Mukuru.Com booth which is by the entrance and greeted the cashier who
is the complainant Raviro Chirape.
(e)
that the fraudulent documents used by Babra to commit the fraud were
generated from his HP Laptop. The appellant however said this was
done by his friend Cordination who had unfettered access to his
laptop which had no password and that this was done without the
appellant's knowledge or approval.
(f)
that he was found in possession of money stolen from Mukuru.Com
Company branch at Chivi Growth Point being United States Dollars. The
appellant however said he had been given this money by his friend
Cordination who owed the appellant some money and that it was not the
appellant's share of the loot.
After
hearing evidence from the complainant Raviro Chirape the cashier at
Mukuru.Com Company branch at Chivi, Babra a convicted accomplice who
had been properly warned and the investigating officer Nxumalo
Mxolisi all for the state and from the appellant and his defence
witness Cordination also a convicted accomplice, the court a
quo
found in favour of the state and dismissed appellant's version of
events or evidence as false.
Irked
by this decision the appellant approached this court on appeal and
the grounds of appeal in respect of both conviction and sentence are
as follows:
“GROUNDS
OF APPEAL
1.
RE: CONVICTION
1.1
The learned Magistrate erred in law when he convicted the appellant
of fraud as defined in Section 136 of the Criminal Law (Codification
and Reform) Act [Chapter 9:23] in the absence of proof beyond
reasonable doubt particularly in that;
(a)
He wrongfully made inferences from circumstantial evidence which
inferences were not the only reasonable inferences which could be
made in the circumstances.
(b)
He wrongfully relied on evidence of an accomplice in circumstances
where the risk of false incrimination was very high and had not been
eliminated.
(c)
He wrongfully rejected the appellant's explanation in his defence
which was probable in the circumstances.
1.2
WHEREFORE appellant prays for the success of the appeal and for the
setting aside of the decision of the court a quo convicting the
appellant of the offence and substitution of the same with a verdict
of Not Guilty.”
In
relation to sentence the appellant is of the view the community
service should have been imposed in light of the mitigating factors
which include inter alia the delay of 5 months in finalising the
matter, that the appellant is a first offender, that half of the
stolen money was recovered, that the amount stolen was not
substantial, that the sentence imposed was within the threshold of 24
months effective sentence and that the appellant is a suitable
candidate for community service.
I
should commend Mr
Chivasa
for his detailed and well researched heads of argument. Equally so I
need to commend the learned trial Magistrate for a very lucid
judgment and a clear appreciation of not only the facts in issue but
the law involved.
The
simple task for this court is to assess as regards conviction if the
court a
quo
properly applied the principles of circumstantial evidence and/or the
liability of co-perpetrators.
The
liability of co-perpetrators is provided for in section 196A of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
This
provision simply reinforces the common law principle or doctrine of
common purpose which entails that for the doctrine of common purpose
to apply in any case it has to be proved that the accused did
something to associate himself with the actions of the person who
actually committed the offence knowing that the other person intended
to commit the said offence or foreseeing that possibility; see State
v Mubaiwa & Anor
1992 (2) ZLR 362 (S); State
v Chauke & Anor
2000 (2) ZLR 494 (S) at 497A.
This
position is well articulated by the esteemed author Burchell in South
African Criminal Law and Procedure Volume 1, 3rd
Edition at page 307 wherein the learned author said;
“where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible for the specific
criminal conduct committed by one of their number which falls within
the common design.”
In
casu,
if it is proved that the appellant indeed connived with Cordination
or Babra or Shelter or all of them in perpetrating this fraud, the
appellant's criminal liability irrespective of his actual role may
be inferred on the basis of the doctrine of common purpose.
In
specific terms it is said the appellant agreed to commit this
offence, that he provided the laptop used to generate the fraudulent
documents, that he acted as a sentinel during the commission of the
offence and that he got the spoils of the loot.
This
is however denied by the appellant but the court a
quo
disbelieved him.
Babra's
evidence is that Cordination who was the brains behind this fraud
briefed her that the appellant would be engaging in surveillance
during the execution of the actual fraud by Babra as a sentinel to
ensure Babra's safety.
Indeed,
Babra was given by Cordination and actually used the fraudulent
documents generated from the appellant's laptop.
In
her evidence Babra said that although she personally had not met the
appellant some person Cordination told her was the appellant would
call her while she was executing the fraud giving her real time
information of what was happening around the crime scene at
Mukuru.Com Company premises at Chivi Growth Point.
Babra
said after successfully executing the fraud she met Cordination and
Shelter after which they proceeded to Zvishavane to share the loot.
She
said the other person she was told was the appellant was constantly
calling them updating them on what was happening at Mukuru.Com
Company branch at Chivi Growth Point in the aftermath of the
commission of this offence. She said this person was identified by
Cordination as the appellant and that the appellant had therefore not
joined them specifically for that reason. Lastly, Babra said as they
shared the money Cordination reserved another share for the appellant
and returned to Chivi to ostensibly give the appellant his share.
Indeed,
when police detectives first sighted Cordination later that day he
was in the company of the appellant at Chivi Growth Point and
appellant was later found with part of the money stolen from
Mukuru.Com Company that very day.
The
assessment of the credibility of witnesses is within the domain or
province of the court a
quo.
Babra's
evidence was that although she had not physically met appellant at
any stage she was briefed that appellant's role was to provide
surveillance or act as a sentinel and that some other person indeed
appraised her on the telephone on what was happening.
Indeed,
it would have been desirable for the police to have checked the
telephone records for all persons involved to verify Babra's
evidence.
Nonetheless
such an omission in my view is not fatal to Babra's evidence. Babra
was not known to the appellant. She is a convicted accomplice. She
had nothing to gain by falsely incriminating the appellant.
The
question which arises therefore is why would she go out of her way to
fabricate the existence and role of a fourth player in the execution
of this offence.
The
court a
quo
found none and there is no such reason in my view.
On
that basis she was found to be a credible witness and the danger of
false incrimination was found to be none existent.
On
the other hand, the same cannot be said for Cordination.
Despite
later pleading guilty to this offence Cordination upon his arrest in
the early hours of 12 January, 2019 denied any role in the commission
of the offence even after some US$307 had been found under his bed.
This can be gleaned from a copy of the police running diary log
produced through the investigating officer. Cordination denied ever
being involved in this matter and said the money found in his
possession was money given to him by his parents (see
the version of page 52 recorded in Shona).
Apparently
he only admitted to the offence when police's evidence became
overwhelming as investigations progressed.
When
Cordination testified he sought to exonerate the appellant alleging
that the appellant played no role. He denied ever telling Babra that
the appellant was involved and that the money he gave the appellant
stolen from Mukuru.Com was to pay a debt owed to appellant. He
further said that he used appellant's laptop to generate fraudulent
documents without the appellant's knowledge.
In
my respectful view Cordination's evidence was properly rejected.
He
is the appellant's friend and the two were very close. He admitted
under cross examination that he would naturally protect the appellant
(see
page 46 of the record).
Most importantly he initially lied to the police. The court a
quo
was correct to reject his evidence and assess him as an incredible
witness.
It
is for the said reasons that appellant criminal liability was based
on doctrine of common purpose or a co-perpetrator.
The
court a
quo
thus found that the appellant was at the scene of crime at N.
Richards Wholesale, that he had knowledge of the offence or criminal
act, that he worked in cahoots with other accomplices including Babra
by manifesting a sharing of common purpose in providing his laptop,
acting as a sentinel, providing surveillance and getting a share of
the criminal proceeds. The appellant on that basis has the necessary
mens
rea
to commit the fraud; see S
v Mgedezi & Ors.
1989 (1) SA 687 (A).
The
next issue to consider is the question of circumstantial evidence.
The
celebrated case of R
v Blom
1939 AD 188 at 202–203 outlines how
circumstantial evidence should be treated by the trial court in
criminal matters. The cardinal principles are that;
(i)
that the inference sought to be drawn must be consistent with all
proved facts. If not, the inference cannot be drawn.
(ii)
that the proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they do
not exclude other reasonable inferences, then there must be doubt
whether the inference sought to be drawn is the correct one. See also
S
v Tambo
2007 (2) ZLR 33 H; S
v Marange & Others
1991 (1) ZLR 244 (S).
It
is competent for a court to return a verdict of guilty solely on
circumstantial evidence; see S
v Shonhiwa
1987 (1) ZLR 215 (S); S
v Vhera
2003 (1) ZLR 668 (H) at 650C.
The
court a
quo
applied these principles to the circumstances of this case. The
proved facts were juxtaposed with the appellant's explanation and
the trial court concluded that the appellant's explanation cannot
possibly be true.
The
relevant facts which were considered are not in issue and are as
follows:
(a)
Cordination who was the brains behind this fraud is appellant's
close friend. This is admitted by the appellant. In fact, appellant
and Cordination were later seen together that very same day by the
police.
(b)
the appellant was present at the crime scene at the material time.
This is confirmed not only by the CCTV but by the appellant himself.
The appellant's explanation is that N. Richards Wholesale is a
public place and that he wanted to see a friend there and to do some
shopping. Indeed, that may be so. The appellant actually passed by
the complainant's booth and greeted her.
(c)
the appellant was found in possession of some of the stolen cash in
United States dollars identified by the serial numbers the very day
the money had been stolen. Upon his arrest the appellant as per the
investigating officer said he had been given the money by his
relatives. However later after the money had been matched with the
serial numbers he changed the story and said he was given the money
by Cordination as payment for money he was owed by Cordination. It is
therefore clear appellant was not consistent in explaining how he
became in possession of the stolen money and had therefore told a lie
on a material issue.
(d)
the fraudulent documents used to commit the fraud were generated from
the appellant's laptop. The appellant's explanation is that
Cordination is the one who generated the fraudulent documents using
the appellant's laptop as he had unlimited access to it and it had
no password. No further explanation is given as to why Cordination
chose to use the appellant's laptop.
Indeed,
each of those facts proven or not in issue, taken in isolation may on
their own not lead to any adverse inference. However, when they are
considered conjunctively together with the accused's own
explanation a proper adverse inference in my view was made.
The
close friendship appellant had with Cordination is admitted.
Is
it plausible that appellant would be paid his debt with the stolen
money the very day it was stolen?
Why
would appellant lie to the police about the source of this money
initially?
One
would raise eyebrows as to why Cordination would choose to use a dear
friend's laptop to generate fraudulent documents and why the
appellant did not know about it. The appellant's presence at the
crime scene dovetails with Babra's evidence as regards appellant's
role.
In
my view the court a
quo
assessed the credibility of all the witnesses and made findings of
fact. The appellant's evidence or version of events was rightly
rejected.
The
principles of law applicable to the facts of co-perpetrators or
acting in common purpose together with circumstantial evidence are
not only well articulated but properly applied to the facts of this
case. I find no misdirection at all on the part of the court a quo.
The threshold or degree of proof required in criminal matters was
achieved.
The
appellant's conviction is unassailable in the circumstances.
Consequently, the appeal against conviction cannot succeed.
In
relation to sentence the court a
quo
gave very cogent reasons as why an effective custodial sentence was
appropriate.
I
share the same view that the option of community service is wholly
inappropriate in this case. All the four culprits were given similar
sentences in line with the principle of uniformity in treating
accomplices in the absence of any objective factors to distinguish
their sentences or to treat them differently.
The
moral blameworthiness of the appellant is very high in this case and
deserve severe censure. This was a well-planned and executed criminal
act of fraud. There was an element of planning and premeditation. A
number of people were involved who played different roles to ensure
success of the criminal enterprise. It was a gang offence involving
team work. The appellant derived benefit from his criminal conduct
and was properly degorged of such benefit by being ordered to pay
restitution.
As
a first offender part of his sentence was suspended on condition of
good behaviour.
Even
after deciding to exercise his rights by pleading not guilty to the
charge unlike his accomplices, he was not treated differently.
The
company from which the appellant and his colleagues stole from
provide an invaluable service to the general public and well-being of
our economy.
At
the end of the day a proper balance of the mitigatory and aggravating
factors shows that the sentence of community service was wholly
inappropriate. It would send wrongful and harmful signals to persons
of like mind and put the whole criminal justice system into
disrepute.
Clearly
the appeal against sentence lacks merit.
Accordingly,
it is ordered that the appeal in respect of both conviction and
sentence be and is hereby dismissed.
WAMAMBO
J agrees………………………………………….
Chivasa
& Associates,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners