Tawanda Wairosi is the accused person's son.

He was 7 years old when he and Ronald, his 9 year old deceased elder brother, were taken from Chivakanenyama Village where they were staying with Eneresi Siamkonde their paternal grandmother. He was 9 years old when he testified in March 2010. He testified through closed circuit television in a Victim Friendly Court at Harare Magistrate's Court. The accused's trial had started at the High court, in Harare, but had to be adjourned to await the gazetting of the court's sitting at Harare Magistrate's Court for purposes of adducing Tawanda Wairosi's evidence in a Victim Friendly Court.

The need to use Victim Friendly Court facilities arose when counsel for the State and the accused advised the court that Tawanda Wairosi was a vulnerable witness who had collapsed at the entrance of the High Court on seeing his father's relatives. It became apparent that measures to protect a vulnerable witness as provided in section 319B of the Criminal Procedure and Evidence Act [Chapter 9:07] had to be invoked. Section 319B of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows:

“If it appears to a court in any criminal proceedings that a person who is giving, or will give, evidence in the proceedings is likely -

(a) To suffer substantial emotional stress from giving evidence; or

(b) To be intimidated, whether by the accused or any other person or by the nature of the proceedings or by the place where they are being conducted, so as not to be able to give evidence fully and truthfully; the court may, subject to this Part, do any one or more of the following, either mero motu or on the application of a party to the proceedings -

(i) Appoint an intermediary for the person;

(ii) Appoint a support person for the person;

(iii) Direct that the person shall give evidence in a position or place, whether in or out of the accused's presence, that the court considers will reduce the likelihood of the person suffering stress or being intimidated:

Provided that, where the person is to give evidence out of the accused's presence, the court shall ensure that the accused and his legal representative are able to see and hear the person giving evidence, whether through a screen or by means of closed-circuit television or by some other appropriate means;

(iv) Adjourn the proceedings to some other place where the court considers the person will be less likely to be subjected to stress or intimidation;

(v) Subject to s18 of the Constitution, make an order in terms of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Cap 7:04] excluding all persons or any class of persons from the proceedings while the person is giving evidence.”

It was obvious that Tawanda Wairosi was already showing signs of being stressed by the environment and intimidated by the prospect of facing his father and persons connected to him in open court. I had no hesitation in directing that the case be adjourned while we waited for the invocation of procedures which would enable the court to use the Victim Friendly Court facilities at Harare Magistrates court.

The factors to be considered in protecting a vulnerable witness, as provided in section 319C(1)(a) to (c) and (e) to (f) of the Criminal Procedure and Evidence Act [Chapter 9:07], are present in this case.

Tawanda Wairosi was 7 years old when the offence was committed. He is now 9 years old. He was to testify against his father who he says he saw crushing Ronald's head with a stone. The nature of the proceedings call for the careful adduction of evidence from this witness of tender age. The parties had already sought an order that Tawanda Wairosi's evidence be adduced in the Victim Friendly Court. The interests of justice called for the use of such facilities.

The feasibility of our sitting in a Victim Friendly Court was however a challenge as this court does not have such facilities. We adjourned the proceedings to await the gazetting of the Harare Magistrates Court as a sitting place for the High court for this case to enable us to use its Victim Friendly Court facilities. We only sat at the Harare Magistrates Court for purposes of hearing Tawanda Wairosi's evidence. If the High Court had such facilities this would not have been necessary. I recommend that Victim Friendly facilities be installed at the High Court. They are necessary as vulnerable witnesses testify in this court under circumstances which affect their testimonies or leave them traumatized. The gazetting of the Harare Magistrate's Court on a case to case basis causes delays in the finalization of cases as the case has to be adjourned until the gazetting takes place.

Tawanda Wairosi impressed the majority of the court as a fairly honest and truthful witness who is simply telling the story as it happened - but only as a 9 year old who has been to school for half a year can.

His evidence is not perfect.

It is embellished on whether or not he remained by the motor vehicle or was left by the motor vehicle. The majority of the court are of the view that minor contradictions or inconsistencies in the evidence of a child on events verified by credible evidence from other witnesses should not lead to the rejection of the child's evidence. After all, a child should not be expected to testify with the clarity of an adult. A child's evidence must be assessed as that of a child, but the court must ascertain its truthfulness by comparing it with corroborative evidence and other evidence led on the incident in question.

I agree with them on how a child's evidence must be assessed but do not agree that Tawanda Wairosi's evidence is sufficiently corroborated on whether or not he walked into the bush with the deceased and the accused and saw the accused crushing the deceased's head with a stone. His statement; that he was left by the motor vehicle, tends to support the accused's version of what happened before the deceased's murder. It makes his evidence questionable on whether or not he witnessed the deceased's murder. HOFFMAN & ZEFFERT 3^rd ed on South African Law of Evidence, dealing with the assessment of the evidence of a child…., says -

“The court is entitled to take into account any other features which show that the child's evidence is unquestionably true, and the defence story false, but it should not ordinarily convict unless there is corroborative evidence which implicates the accused.”

In this case, I am of the view that the corroborative evidence of Japhet Maunzeni and Munyaradzi Kondo does not implicate the accused but merely proves that the deceased and Tawanda Wairosi must have been together at or near Sandara Farm.

Counsel for the defence argued that the evidence of this witness must be treated with caution, because of his age, as witnesses of this age are suggestible, imaginative and can fantasize events.

Tawanda Wairosi demonstrated that he is not suggestible when he said the police told him to say his brother was killed by strange people. He said they told him to tell that story when they were taking him home. He told the court that what they suggested is not what happened. The possibility of that being true is strengthened by his refusing to endorse the version appearing in the State's summary of his evidence, and the accused's confirmed warned and cautioned statement which must have been used to inform the State's case. He seems to us a child bent on telling the truth even if it goes against the State case and his father. The police must have sought to produce a coherent story but Tawanda Wairosi refused to purge himself but told a story which incriminates his own father in a manner different from that narrated in the State's summary of his evidence. If he cannot take the suggestion of the police he cannot therefore be giving evidence suggested to him by anyone. His story is not a product of fantasy or imagination. It is corroborated by common cause evidence. Ronald's head had two wounds and he died of head injuries. He died in the bush Tawanda Wairosi says their father walked them into. Tawanda Wairosi himself was found in that bush. A stone was found near the deceased's body.

Recent case law has established that children do not have fantasize about things they do not know. They fantasize on things they encounter on a daily basis. Murder must surely be a strange concept in the mind of a seven year old. He cannot conjure up images of a murder and tell a story which accurately explains the death of his own brother which is generally supported by witnesses whose evidence was admitted by the defence.

In S v Musasa 2002 (1) ZLR 280 (H)…, HLATSWAYO J, dealing with issues similar to those raised by counsel for the defence, said -

“Many judgments of this court and the Supreme Court have underlined the fact that it is highly unlikely for very young complainants to make serious allegations without any basis at all. See, for example, the dicta of MUCHECHETERE JA in S v Muchowe SC14-99 at p9 and CHINHENGO J (with the concurrence of GARWE J) in S v Madzomba 1999 (2) ZLR 214 (H) at 222, where it was said in respect of rape allegations made by a five year old twenty months after the abuse:

'It is of course, quite possible that a child of so tender an age can make, without much thought, generalized and damaging  allegations against the only person at the place she is to be removed. That must, however, be balanced against the consideration why and whether a girl of so tender an age could make so serious an allegation against the appellant and Abias if nothing of the sort had taken place. The fact of the matter is that her hymen was found missing which tended to confirm her evidence that she had been sexually abused.'

Furthermore, psychological research has established that young children do not fantasize about being raped and other unusual, horrific occurrences, but that their fantasies and play are characterized by their daily experiences. In this regard; J.R. SPENCER and RONA FLIN, The Evidence of Children; The Law and the Psychology 2ed (Blackstone Press Ltd. 1993) at pp317- 318, made the following observation:

'There is certainly no psychological research or medical case study material which suggests that children are in the habit of fantasizing about the sort of incidents that might result in court proceedings; for example, observing road accidents or being indecently assaulted. Children's fantasies and play are characterized by their daily experience and personal knowledge, and unusual fantasies are seen by psychiatrists as highly suspicious: The cognitive and imaginative capacities of three-year olds do not enable them to describe anal intercourse and spitting out ejaculate, for instance. Such detailed descriptions from small children, in the absence of other factors, should be seen as stemming from the reality of the past abuse rather than from the imagination' VIZARD E., BENTOVIM A., and TRANTER M. (1987) Interviewing sexually abused children.”

In Nivrutti Pandurang Kokate & Ors v State of Maharashtra, AIR 2008 SC 1460, the Indian Supreme Court dealing with the evidence of a child witness, observed thus:

“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if, from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

The four year old gave evidence when she was six.

She stated that she was playing with the eight year old girl close to the three tuck shops that were near their houses. A boy from one of the tuckshops called them to where he was. She went to him. He asked her to lie down. She did so. He removed her pants. He took out his urinating organ and inserted it into her urinating organ. She cried out in pain. He gave her some sweets and ordered her to go home. She bled. She stated that she used to see him running the tuck shop before the incident but did not know his name or where he resided.

The boy also asked her eight year old companion to lie down. She complied. He inserted his male member into her female organ and she cried out in pain. The pants of her friend were bloodstained. The boy gave her friend some sweets. They went home. At home her mother discovered bloodstains as she was bathing her. She was taken to the clinic and to the police. She went to the tuckshop where she identified the culprit who was in the company of two others. Under cross examination, she averred that she voluntarily led her mother and the police to the tuck shops where she freely identified the accused as the perpetrator.

The eight year old girl, who was born on 14 June 1996, also testified twenty months after the incident.

The State led viva voce evidence from one witness, Admire Sibanda, who is a male juvenile from Village Mgatshwa in the Lower Gweru Area.

This witness testified that the deceased confronted him and the accused and accused them of placing some thorns on or upon his bricks. This led to a misunderstanding which resulted in the deceased challenging the accused to a fight. The witness said that the deceased was the aggressor because he slapped the accused and thereafter there was an exchange of blows. The accused was overpowered because of his youthfulness and apparent smaller built to that of the deceased person. The witness said that after the parties had struggled with each other for about 5 minutes he heard the deceased saying that the accused had stabbed him. He saw the deceased falling down and trying to walk towards his home. The deceased fell down and was ferried from the scene of the crime by Sipho Mpofu, Prince Dube and Jimson Ngwenya. 

The evidence of children has to be carefully weighed as they are generally vulnerable and are susceptible to regurgitating statements from adults, thereby turning fiction into facts. It is for that reason that these courts are extra cautious where children's' evidence is concerned. In S v Sibanda 1994 (1) ZLR the Supreme Court analysed the possible pitfalls and gave guidelines in that regard.

The complainant is indeed a very young girl. Her evidence was very clear. She was playing with her friends when the appellant grabbed her hand. This was in full view of other children. Talent Ncube also witnessed this incident. Above all, the medical report confirms that the complainant was sexually interfered with.

The courts have adopted a cautious approach when dealing with children's evidence but such caution should be positive and creative. See S v Musasa HH52-02.

Children's evidence should not be viewed with a jaundice eye as if the first impression on their evidence is that they are liars. These courts should always guard against the pitfalls of children's testimonies. This caution is necessary because:

(i) Children's memories are unreliable, particularly for detail;

(ii) Children are egocentric and not likely to consider the effect of their statements on others;

(iii) Children are highly suggestible;

(iv) Children have difficulty distinguishing fact from fantasy;

(v) Children make false allegations particularly of sexual assault; and

(vi) Children do not understand the duty to tell the truth.

This is the approach advocated for in S v Sibanda SC55-94. 

Taking into account the above approach, I find that the complainant clearly passes the above grid and as such she was a convincing and satisfactory witness.

Kelvin Vundla is now aged 14 years.

He told the court that on the fateful day the accused asked him to accompany him to go and look for his uncle's footprint to see if he (uncle) had gone to a place known as Kandamhlophe. He took him to a path that led to where the deceased was hanging from a mopane tree. When they were near there he told Kelvin to look in the direction of where she was hanging. He looked and saw her. He then panicked and ran away.

What emerges from Kelvin Vundla's evidence is that the accused pretended to go and look for his uncle's footprint when in fact he wanted him to see the deceased hanging so that he would say he had discovered the deceased's body by chance. The accused had lied to Jacqueline Msebele that Kelvin Vundla was taking him to familiarize himself with the local bush. The rest of Kelvin Vundla's evidence is similar and corroborative of the evidence given by other witnesses. 

Phineas Zinatsa is doing Grade Six. On account of his age he was warned to tell the truth.  

He testified in camera.

He explained that he had gone to church but there was no service. When he returned home he found the accused and the deceased there. They were told to drive cattle for grazing. The accused remained home as she intended to return where she had been working. On their way back, the deceased fell down by a Mukute tree. He then carried her and placed her by the sink.

During the process of being led by the prosecutor the witness began to sob. He explained that he was afraid of the judicial officers (pointing at the judge and one of the assessors). Having been reassured by the court he composed himself and continued to testify. Taking into account the age of the witness and the nature of the case, it should have been apparent to the prosecution that there was need for the witness to testify at the Victim Friendly Court.

A further concern is that the learned magistrate appears to have failed to warn himself of the need to apply the cautionary rule when dealing with the evidence of the complainant. 

The complainant was aged 6 years at the material time and at that age she could have easily been prone to exaggeration, fabrication and fanciful thinking. See the case of State v Sibanda 1994 ZLR 394 (S).

In the above matter, the Supreme Court laid down six main issues to look out for when dealing with evidence of minor children, namely:

a) Children's memories are unreliable.

b) Children are egocentric.

c) Children have difficulty distinguishing fact from fiction.

d) Children are highly suggestible.

f) Children make false allegations.

THE FACTS

The deceased, Ronald Wairosi, was aged nine (9) at the time of his death. He was the elder of the appellant's two sons with his first wife. The appellant and the children's mother had divorced when the children were very young. The deceased and his younger brother, Tawanda, resided with their grandmother, the appellant's mother, in Chivakanenyama area in Hurungwe. The appellant lived in Banket with his new wife.

The only eye witness to the murder was Tawanda. He gave evidence in camera as the court found that he was a vulnerable witness.

When the murder occurred he was aged seven (7). He gave evidence two years later at the age of nine (9). His evidence was to the following effect.

On 11 June 2007, the appellant arrived at his grandmother's homestead and informed his mother that he wanted to take the boys to Karoi to obtain birth certificates for them. The following day, despite his grandmother's protestations, the appellant left with the two boys. He took them to Karoi. In Karoi, they proceeded to Madiro Supermarket where they boarded a single cab truck with three male occupants.  The driver was alone in the front and the other two were seated at the back in the cab. The three men were dressed in black attire. The appellant and the two boys sat in the back of the pick-up truck.

From Karoi, the vehicle travelled a considerable distance along Chiumbarukwe Road. The driver stopped the vehicle by the roadside in a bushy area within the farming area. The appellant and the two children disembarked. The occupants of the vehicle remained in the vehicle which remained stationary. The appellant and the children walked further into the bush. Once in the bush, the appellant picked up a stone and struck Ronald. Tawanda ran off into the bush where he spent the night. He was found wandering in the grazing area of Sandara Farm the following day by Munyaradzi Kondo and taken to the police where a report was made. On 16 June 2007, Japhet Mauzeni, a security guard with Sandara Farm, discovered the remains of the deceased in the grazing area whilst on patrol. He made a report to the police who attended the scene and recovered the body.

The appellant's mother gave evidence which corroborated that of Tawanda in relation to the appellant's visit to her homestead. She confirmed that he had taken the two boys away alleging that he wanted to obtain birth certificates for them in Karoi. She said that he had returned to the homestead on 15 June 2007 with one child instead of two. She asked him where the other child was and he narrated the events of the fateful day. The story he narrated to her was as follows:

“He then said that they were fighting him he then managed to grab Tawanda threw him away and the other remained. He then said that when they had remained he managed to grab an iron bar and he struck one of those two guys on the legs and the driver came out with a knife. He said that he had fled with Tawanda. He then said that Ronald remained in the vehicle of the murderers. I then asked as to whether Ronald had been tied since he could not escape when the others did and he said that he did not check on that. When I asked him about Ronald he said that he could not check on that because he was also being fought at. After he said that I then started crying. When he told me that the other child had remained in the vehicle of these murderers I started crying telling him that I had advised him earlier on to leave the children because there was going to be a mobile registration and he could not take my advice.”

The mother also told the court that the appellant did not appear to have any injuries and that she only learnt of the death of Ronald when she went to Karoi Police Station to have a statement recorded by the police. According to the witness, the appellant had come back to her homestead on the Sunday with his wife. He told her that the deceased was dead and that he would go to the police station to find out if the body had been recovered. His mother told the court that he had lied to her about having been attacked and that she found out the truth when she went to the police station.

The telling fact is that the appellant did not challenge her evidence on what transpired after he returned to her homestead with one child instead of two.

Detective Sergeant Katsvere gave evidence to the effect that the deceased had been found on 18 June 2007. He had proceeded to the scene where the deceased was found lying on the ground. One of his ears was missing and beside the body was a large stone which had hair.

When the matter came to trial the stone which was produced no longer had any hair.

After recovery, the body of the deceased was taken for examination to a pathologist who prepared a report. The postmortem report revealed that the deceased sustained the following injuries:-

(i) Fractured parietal bone measuring 3cm.

(ii) Fractured temporal bone measuring 4cm.

 (iii) Partially amputated (sic) right ear.

The pathologist concluded that the deceased died as a result of head injuries.

At the trial, the appellant submitted to the court a lengthy and detailed Defence Outline. The evidence of the appellant was to a large extent consistent with his Defence Outline. There were, however, major discrepancies between what was contained in his Defence Outline and his evidence.

In his Defence Outline, he stated that he picked up his two sons from their grandmother intending to take them to Ceres Farm where he had recently obtained employment. He stated that by the time he and the boys arrived in Karoi the last bus for Ceres had gone and he decided to hitch hike to the farm. At about 1600 hours, a truck pulled up at the supermarket where he and the children were waiting. The driver of the vehicle indicated that he was going in that direction and the appellant and the children climbed in.  Apart from the driver there were two other gentlemen seated at the back. The appellant and his children got into the back.

In his evidence he gave a completely different version.

He said that he had gone to Karoi with the boys to obtain birth certificates. He had gone to the registry office where he was informed that the mother was required and he had been advised to bring her the following day. He said the bus to Ceres Farm had left and he decided to go and board a lift.

In the Defence Outline, he stated that after having travelled for a distance, the driver stopped the vehicle near Mureshi River. One of the men at the back pulled out a gun and ordered Tawanda to disembark from the vehicle. The appellant also tried to disembark and was threatened. Ronald was being held by the other man, whose identity was later revealed as Mazheke. After proceeding for another 200 metres, the driver stopped the vehicle. Mazheke struck the deceased twice on the head with an iron bar. The gunman, whom the appellant later found out was called Masunda was pointing the gun at the appellant.  After being struck, the deceased collapsed. Mazheke covered him with a blanket. The vehicle took off. At Ranrock Farm, the driver stopped the vehicle and ordered the appellant to disembark. He was threatened with death and ordered not to make any noise. The appellant made his way to Ceres Farm where he related his ordeal to his sister and her husband.

In his evidence, he did not say that Tawanda was threatened with a gun. Instead, he said that he is the one who was threatened when he protested about Tawanda being made to disembark from the vehicle; nor did he mention the distance that the vehicle travelled before Ronald was attacked.

According to the Defence Outline, and in his evidence, early the following morning, the appellant proceeded to Karoi Police Station where he made a report. The following day he received information that his younger son, Tawanda, had been found wandering in the bush. After picking him up he went to Chivakenyama where his mother stayed to advise her of the events. On his way back he passed through Magunje Police Station where he was informed that Ronald had been found dead at Sandara Farm.  Immediately thereafter, a truck containing the body of the deceased arrived at the police station. The appellant was arrested and detained.

He alleged that when interrogated he denied any involvement in the death of the deceased. He was subjected to torture for a period of three days, and, as a result, he confessed to the crime. A warned and cautioned statement was recorded from him by the police.

Tawanda's evidence that the appellant took him and his brother away from home against the wishes of his grandmother tallies with that of the appellant and the grandmother. He was emphatic that the appellant did not take his brother and himself to the births and deaths registry for the purpose of obtaining birth certificates. This also accords with what the appellant said in his Defence Outline, when he said he had picked up the boys to take them to Ceres Farm where he had obtained employment.

The evidence of the two is similar as regards the motor vehicle they boarded and the occupants, including where in the vehicle the appellant and his sons were seated. The motor vehicle stopped to allow the appellant and his children to disembark, as suggested by Tawanda, or to force Tawanda out leaving the appellant and his older son in the vehicle to facilitate the murder of the deceased by the occupants of the motor vehicle.

The learned trial judge was not satisfied that the evidence given by Tawanda, in relation to the murder, was reliable.

He was of the view that certain aspects of the evidence contained inconsistencies which could not be relied on by the court in the absence of corroboration of that evidence from other sources. He expressed his doubts as follows:

“…,. He seems to us a child bent on telling the truth even if it goes against the State case and his father. The police must have sought to produce a coherent story but Tawanda refused to perjure himself but told a story which incriminates his own father in a manner different from that narrated in the State's summary of his evidence. If he cannot take the suggestion of the police he cannot therefore be giving evidence suggested to him by anyone. His story is not a product of fantasy or imagination. It is corroborated by common cause evidence. Ronald's head had two wounds and he died of head injuries. He died in the bush Tawanda says their father walked them into. Tawanda himself was found in that bush. A stone was found near the deceased's body. Recent case law has established that children do not have fantasies about things they do not know. They fantasise on things they encounter on a daily basis. Murder must surely be a strange concept in the mind of a seven year old. He cannot conjure up images of a murder and tell a story which accurately explains the death of his own brother which is generally supported, by witnesses whose evidence was admitted by the defence.”

And later on:

“While I agree with the majority that Tawanda did not give evidence suggested to him or out of fantasies, his evidence remains unsatisfactory. I would therefore agree with Mr Nkomo, but for different reasons, that his evidence should be treated with caution.”

After a careful analysis of the evidence given by Tawanda the learned trial judge remained of the view that it was not safe to rely on his evidence. 

In terms of section 10(2) of the High Court Act [Chapter 7:06] any question of fact arising out a criminal trial shall be decided by the majority of the members of the court.

The learned assessors, however, disagreed with the judge and found him a credible witness.

In view of the conclusion by the learned assessors sitting with the judge, to the effect that Tawanda's evidence could be relied on, the appellant was convicted of murder with actual intent to kill.

THE SUFFICIENCY OF THE EVIDENCE ADDUCED ON BEHALF OF THE STATE

It was contended on behalf of the appellant that given the age of the only eyewitness, Tawanda, the court had misdirected itself in relying on his testimony in the absence of independent evidence establishing the requisite mens rea on the part of the appellant. Counsel argued, further, that the testimony of a child requires that it be treated with caution, and, further to that, that it is settled that the evidence of a child requires corroboration.

The law with regard to the evidence of juveniles was examined in detail by EBRAHIM JA in S v Sibanda 1994 (1) ZLR 394….,. In relation to the cautionary rule, the learned Judge of Appeal stated:

“Returning to the issue of the cautionary rule raised in the first ground of appeal, it is well established in such cases as R v Judson 1965 RLR 501, S v Mupfudza 1982 (1) ZLR 271 (S), S v Santos SC138-85 (unreported), and S v Ponder 1989 (1) ZLR 235 (S), that it is advisable to require corroboration of the testimony of young children because their youth indicates immaturity of mind which may cause them to give ill-considered or misleading evidence. See the comments of YOUNG J in R v J 1958 (3) SA 699 (SR) at 702. However, our law, unlike English law, does not require corroboration. (See WATERMEYER CJ in R v W 1949 (3) SA 772 (A) at 781 and MCNALLY JA in S v Santos supra at 7-8). In W's, case the learned CHIEF JUSTICE, after remarking on the absence of a requirement for corroboration, added:

'But this is only the position where the court is fully appreciative of the risks involved and where the merits of the complainant and the demerits of the accused as witnesses are beyond question.'

I take this to be the source of the cautionary rule.

What precisely are the risks involved in the acceptance of the evidence of children?

The liberal rules governing the acceptance of children's evidence in our jurisdiction impose a duty on the court to be cognisant of potential objections to the evidence of children which may, or may not be valid according to the facts and circumstances of each case. In their useful book, the Evidence of Children (Blackstone Press) at p 238, SPENCER and FLIN list six of the main objections to relying on children's evidence. These are:

(a) Children's memories are unreliable;

(b) Children are egocentric;

(c) Children are highly suggestible;

(d) Children have difficulty distinguishing fact from fantasy;

(e) Children make false allegations, particularly of sexual assault;

(f) Children do not understand the duty to tell the truth.'”

After a careful analysis of each of the listed objections the learned JUDGE concluded…,:

“I have adopted this method of analysing the evidence precisely because I think a new and more specific approach to cases involving children is called for. It is not that there is anything intrinsically wrong with the present approach of merely seeking corroboration of the evidence of a child. No-one who reflects on the matter would doubt that this, in most cases, is the correct approach. But in approaching such cases with a single-minded eye towards seeking corroboration, the courts lose sight of the reasons for seeking it. This danger was noted by BARON ACJ in S v Mupfudza supra at 273E:

'The court looks for corroboration for the evidence of a suspect witness. But, perhaps precisely because of the search for corroboration, trial courts frequently forget that the court must decide whether the witness is credible…,. If (he is) not, the matter is at an end, and the question of corroboration of, or support for, his testimony does not arise…,.'

A rational decision as to the credibility of a witness (especially a child witness) can be arrived at only in the light of a proper analysis by means of testing it against likely shortcomings in such evidence in the manner suggested by SPENCER and FLIN op cit. To reach an intelligent conclusion in such an analysis it is necessary to apply, as they do, a certain amount of psychology and to be aware of recent advances in that discipline. This will undoubtedly mean an increase in the workload of judicial officers and the machinery of justice generally, but ways must be sought of accommodating this, as it is the price to be paid for professionally administering justice in an increasingly complex society.”

The gist of the analysis of the objections to the evidence of young children by the learned judge is aptly summarised by JOHN REID ROWLAND in his book Criminal Procedure in Zimbabwe…,;

“(a) Children's memories are unreliable. They tend to have a good memory of central events and poor memory for detail and evidence of surrounding circumstances. Their memories, however, tend to respond better to a sympathetic questioner;

(b) Small children are indeed egocentric, and, as a result, are less able to be objective about the truth than a more mature person;

(c) Children are highly suggestible. This tendency can be minimised by use of questions designed to overcome known pitfalls, such as the propensity to give an inaccurate answer because it suits him better to do so, either because he wants to be finished with the process or wants to please the questioner;

(d) Children have difficulty distinguishing fact from fiction although children do not fantasise over things that are beyond their own direct or indirect experience;

(e) Children may not understand the duty to tell the truth. However, one may not generalise on this point. The child's age, intelligence, and morality will affect his ability to understand the duty to tell the truth. Therefore, the greater the difficulty the judicial officer has in ensuring that the child can distinguish between truth and untruth, the greater the care the court should show in accepting what the child says.”

The learned judge in the court a quo was alive to the need to treat the evidence of Tawanda with caution in view of his age. This is what the learned judge stated:

“…,. A child's evidence must be assessed as that of a child, but the court must ascertain its truthfulness by comparing it with corroborative evidence and other evidence led on the incident in question. I agree with them on how a child's evidence must be assessed but do not agree that Tawanda's evidence is sufficiently corroborated on whether or not he walked into the bush with the deceased and the accused, and saw the deceased crushing the deceased's head with a stone. His statement that he was left by the motor vehicle tends to support the accused's version of what happened before the deceased's murder. It makes his evidence questionable on whether or not he witnessed the deceased's murder. HOFFMAN & ZEFFERT 3^rd ed on South African Law of Evidence, dealing with the assessment of the evidence of a child at p 456 says:

'the court is entitled to take into account any other features which show that the child's evidence is unquestionably true, and the defence story false, but it should not ordinarily convict unless there is corroborative evidence which implicates the accused.'

In this case, I am of the view that the corroborative evidence of Japhet Tauzeni and Munyaradzi does not implicate the accused but merely proves that the deceased and Tawanda must have been together at or near Sandara Farm.”

An analysis of the evidence of Tawanda, based on the approach recommended in S v Sibanda 1994 (1) ZLR 394 becomes necessary.

The gist of the evidence of Tawanda was that his father picked them up from their grandmother's place on the pretext that he was taking them to Karoi in order to obtain birth certificates. The witness stated that his father lied because they did not go to Karoi. He stated that his grandmother had told the appellant that they should board a bus. They did not. Instead, they got into a blue pick-up truck with three occupants.  They travelled for a distance after which he, the appellant and his brother disembarked. They walked into the bush and the appellant struck the deceased with a stone. He then ran away.

It was contended by the appellant that his evidence was inconsistent.

He said that he had been left by the vehicle whilst his father and brother went into the bush. It was also contended that in complete contradiction to this he had then told the court that he, his father and brother walked into the bush where he witnessed his father crush the deceased on the head with a stone. Due to these inconsistencies, it was argued, he was far away from the scene of the murder and could not have witnessed his father killing the deceased.

It cannot be gainsaid that the court a quo was itself critical of the very aspects of his evidence which the appellant is attacking. This emerges clearly from the observations by the learned judge to the following effect;

“The admission that he was ordered to disembark from the motor vehicle supports the accused's claim that at some point in the journey Tawanda was ordered to disembark from the motor vehicle. If this is considered in the context of his having been left by the motor vehicle it has the effect of placing him away from the scene of the murder which Sergeant Nhari said was about 800 metres from the road. The majority of the court, however, believes he obviously made a mistake or was misunderstood, when he said he was left by the motor vehicle. That statement is in fact ambiguous as it can mean the motor vehicle left him, or that he was left positioned near the motor vehicle. When the court sought to clarify this issue Tawanda said the motor vehicle had left when the deceased was struck with a stone and he ran away.”

And later on, the Judge stated:-

“The above demonstrates that the motor vehicle was parked by the side of the road when he, the deceased and their father walked into the bush. When he ran away the motor vehicle was no longer present.”

The learned trial judge was of the view that the witness had embellished his evidence.

This view was buttressed by the evidence of the grandmother to the effect that when the murder occurred Tawanda was in Grade 1. However, to the contrary, Tawanda told the court that he was not in school at the material time. The trial judge also found his evidence to be questionable. He was of the view that there was no corroboration for the version that he observed the appellant striking the deceased with a stone. The learned judge was also of the view that his statement that he was left by the vehicle tended to corroborate the evidence of the appellant that he was made to disembark from the vehicle and was left behind. Consequently, he could not have witnessed the murder of the deceased.

The evidence of Munyaradzi Kondo, who found Tawanda wandering in the bush in Sandara Farm, was admitted by consent.

Tawanda told the witness that the appellant, the deceased and he had been together and that he had last seen the other two in Sandara Farm. The witness was looking for cattle, and the only reasonable inference is that Tawanda was discovered in the grazing area of the farm.

The evidence of Japhet Mauzeni was also admitted by consent. On 16 June 2007 he was in the grazing area of Sandara Farm when he discovered the deceased.

If one accepts that the appellant was telling the truth in the Defence Outline, that the vehicle travelled a further 200 metres after Tawanda was made to disembark, this suggests that the vehicle was within a short distance from where Tawanda had been left as suggested by the appellant.

It is common cause that Tawanda was found wandering in Sandara Farm. The body of the deceased was discovered in Sandara Farm. A large stone was found next to the body and the hair on the stone led the police officers who attended the scene to conclude that it was the murder weapon. Its weight was 4.718kg. The post mortem report bears no reference to the stone as the alleged murder weapon.

There was no suggestion that Tawanda was prompted as to the nature of the murder weapon. Indeed, the learned judge found that he was not susceptible to suggestions by the police on the nature of the evidence that he should give.

As observed by the learned judge in the court a quo, Tawanda is a juvenile and at the time of the fateful events he was aged seven (7). Due to his age, his evidence had to be treated with caution, due to the risks attendant upon the acceptance of the evidence of juveniles.

There is no requirement that the evidence be corroborated. 

However, his description of the murder weapon does receive some corroboration from the evidence. It accords with the injuries found at post-mortem on the body and with the evidence of the police details who found a large stone lying near the body with hair on it.

A comparative analysis of the evidence of the appellant points to even greater inconsistencies than those evident from the evidence of Tawanda.

The appellant knew that the deceased was dead yet he made no effort to report to the police immediately after the attack. He went to his sister to make a report but did not say that the deceased had been murdered. He did not conduct a search for Tawanda.

He did not tell the court that he had struck one of the so-called murderers with an iron bar; which was the version he told his mother. He told the court that he and Tawanda had been threatened with a firearm. He did not tell his mother of these alleged threats. He had also told the court that when he was made to disembark he had looked at his deceased child and started crying. In his testimony, the appellant said that a few days after the incident he had gone to his mother's homestead with Tawanda who had been recovered wandering in the bush. He never told his mother that when he left the vehicle Ronald was already dead. He told the court that on 18 June 2007 he had gone to Magunje Police Station with his uncle “to check as to the status of his case.” The police then told him that a body had been recovered at Sandara Farm and a vehicle had been dispatched to collect the body. Shortly thereafter, the vehicle arrived with the body of the deceased.

The police details who gave evidence told the court that the appellant did not make a report on the alleged murder of the deceased by the three men in the vehicle and that the first report they received was on 18 June 2007 - after the body of the deceased had been discovered in the bush at Sandara Farm. 

The missing child had also not been reported to the police.

There is indeed an obvious conflict between the evidence of the appellant and Tawanda and the determination of the conflict will inform the court as to which of the two versions is the most probable. That should resolve the difficulty that confronted the court a quo as to whether Tawanda was embellishing his evidence.

The probabilities favour Tawanda's version as opposed to that of the appellant.

It was unlikely that the appellant's intention was to obtain birth certificates as he could not do so in the absence of the children's mother. The children's grandmother had told him that there was going to be a process for mobile birth registration in the area and he needed the children's mother to be present for him to obtain the birth certificates.

His evidence that he had, in fact, made an attempt to obtain the documents is clearly an embellishment.

If the contention by the appellant that Tawanda was not telling the truth is accepted, the only logical conclusion would be that he was fantasizing about the events of that fateful day. The learned judge correctly stated that recent studies have shown that children do not fantasize about things that they have not experienced. The question that cries for an answer is whether Tawanda would fantasize about the murder of his brother at the hands of his own father. During the trial, he stated that the police had tried to make him give a statement implicating the occupants of the vehicle and he had refused.

The learned judge stated that he accepted that Tawanda did not give evidence according to what was suggested to him or out of fantasy. He found the evidence unsatisfactory because of inconsistencies. I will quote the reasoning of the judge hereunder:

“I would therefore agree with Mr Nkomo, but for different reasons, that his evidence should be treated with caution. He, for instance, said he had never been to school, when Eneresi his grandmother said he was in Grade One when his father took him away from her. He can, in my view, be similarly untruthful on other aspects of his evidence.

The State summary on Tawanda's evidence is at variance with Tawanda's evidence. He is theresaid to have seen the accused's accomplices wearing black clothes, and the accused receiving money from the accomplices. It is there alleged that he heard the driver and the accused conversing about cutting the ear and the head as they pointed at the deceased. The State Outline also alleges that the deceased remained in the truck held by one of the men while he and his father were ordered to disembark. He is alleged to have seen the driver coming out of the vehicle holding three knives, and the accused going to the vehicle where the deceased was being held. He is alleged to have thereafter witnessed a violent scene at the motor vehicle after which he ran away. The State did not ask Tawanda about these details. The defence did not cross examine him on them but put it to him that his evidence in court was different to what was recorded in his statement to the police. Tawanda's statement to the police was not produced. The court cannot determine whether or not he would have confirmed what is alleged in the State's summary of his evidence if he had been asked about them or given an opportunity to comment on them. A witness's credibility cannot be affected by his not mentioning something if he is not asked about it, or if he has anything else to say relevant to the case.”

The learned judge went on to state:

“The difference between the State Outline and the complainant's or witness's evidence during the trial cannot be held against the complainant or the witness as they do not take part in the preparation of the State's Outline. The difference must however be satisfactorily explained as it will be fatal to the State's case if it remains unexplained when the State closes its case. In S v Nicolle 1991 (1) ZLR 211 at 214B-G KORSAH JA commenting on the functions of the State's and defence outlines, and the effect of the complainant's departure from the State's Outline said:

'Commenting on the importance of the part played by the respective outlines of cases in a criminal trial, SQUIRES J said in S v Seda 1980 ZLR 109 (G) at 110H – 111A:

'They perform a similar function to the pleadings in a civil trial, and serve not only to identify what may be in issue between the State and the accused, but to advise each of the substance of the matters that are in issue, with the obvious advantages this affords of avoiding delay in completing the trial. In addition, it must always be appreciated that just as any significant and unexplained departure by the accused in his evidence from the outline of the defence which he makes may be a matter for comment or even adverse conclusions, so does such a consequence affect what is said by the State witnesses.'

While citing the above dictum of SQUIRES J with approval, I hasten to point out that whereas the outline of defence is prepared from what the accused person tells counsel, and is tendered in evidence with his approval, the outline of State case is not prepared on the instructions of the complainant and is certainly not approved by the complainant before it is tendered in evidence and does not constitute part of the complainant's testimony. I would suggest that the reason for drawing an adverse conclusion when the outline of State case is seriously at variance with the evidence of the prosecution witnesses is that because of the conflict between the two a doubt is raised as to whether the State witnesses are being truthful. Such a conflict may easily be explained by the production of the complainant's statement to the police. But if this is not done, so long as that conflict is unresolved at the end of the hearing, the benefit of the doubt must be accorded to the accused; for it would not be possible to say that the State has proved the case which it undertook from the onset to prove, and has therefore proved its case beyond a reasonable doubt.'”…,.

The weight to be attached to Tawanda's evidence, must, in view of the irreconcilable variances between his evidence in court and what the State Outline said he was going to tell the court, be carefully considered.

The learned judge proceeded to assess the evidence of Tawanda and concluded that the variance in the State Outline and what he had said in his evidence had not been satisfactorily explained. It was the view of the learned trial judge that the variance had created a reasonable doubt in the State case which could only be resolved in the accused person's favour.

In my view, the dilemma with which the learned trial judge was plagued was easy to resolve on the criteria advocated in S v Sibanda 1994 (1) ZLR 394. The court sought to treat Tawanda as an adult witness and assessed his evidence from that premise.

However, when his evidence is viewed in its totality within the context of the events of that day there is no suggestion that he is so concerned with himself that he was unable to be objective in telling the truth.  The issue of suggestibility was resolved by the learned judge when he stated that Tawanda refused to give evidence based on suggestions from the police.

As stated earlier, the judge concluded that children do not fantasize about events they have not witnessed. His story on the manner in which the deceased was struck was stark and devoid of frills. He said that the appellant stuck the deceased on the head with a stone. Frightened by this he ran away. He could have embellished his evidence by putting detail to the events. He did not. He gave a simple story.

The issue of false allegations is admittedly the one that would cause the most difficulty where the evidence of a child is subjected to analysis. The question the trial court should have asked itself is why a child would make false allegations of such a serious nature against his own father.

In his judgment, the learned trial judge commented thus when discussing the evidence of Tawanda and that of the appellant:

“On comparison, Tawanda's evidence is more credible than the accused's for the following reasons. The accused lied when he told his mother that there were other passengers in the motor vehicle. He lied to his mother about fighting their alleged assailants. He, in his evidence in court, gave a different version which does not say he fought their assailants. He, in it, does not say he threw Tawanda out of the motor vehicle. He does not say himself he jumped out of the motor vehicle and ran away. This, plus the general credibility of Tawanda as a witness satisfied the majority. It, however, did not remove the doubt I entertained on the reliability of his evidence.”…,.

Once the learned trial judge found that the appellant had lied and that Tawanda was a more credible witness that should have been the end of the matter. If the appellant lied about the manner in which Tawanda left the motor vehicle, it is inconceivable that his version of the attack on the deceased could be credible.

THE POST MORTEM REPORT

It was suggested, on behalf of the appellant, that the murder weapon was not the stone recovered by the police because it did not have blood.

Although the police witnesses suggested that it had bits of hair when recovered, when it was produced in court the hair was missing. Much was made by defence counsel of the missing hair. It was suggested that the deceased could not have been struck with that stone due to the missing hair. It was also contended that the trial court erred in relying on the evidence of Tawanda as to the manner in which the deceased was killed when his evidence was not supported by the postmortem report compiled by the pathologist.

I do not find anything in the post mortem report which would lead to the conclusion that the evidence of Tawanda is in conflict with the report. Indeed, the trial court found that the report confirmed that two blows had been delivered to the deceased's head. It was never suggested during the trial that the injuries found on the deceased were not consistent with a stone as opposed to an iron bar as claimed by the appellant….,.

WHETHER OR NOT THE STATE PROVED ITS CASE BEYOND A REASONABLE DOUBT

It is contended by the State that the evidence of Tawanda, taken together with the evidence of the police and the post mortem report itself presents a very strong case which establishes proof beyond a reasonable doubt.

I agree.

Proof beyond a reasonable doubt is not proof beyond any shadow of doubt. I am fortified in this view by the remarks of DUMBUTSHENA CJ in S v Isolano 1985 (1) ZLR 62…, to the following effect:

“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 the 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 a reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the 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 a reasonable doubt, but nothing short of that will suffice.”

The doubt that remained in the mind of the trial judge was concerned with the evidence of Tawanda as to whether or not he remained by the vehicle when he disembarked. This is due to the statement;

“I was left by the vehicle.” 

The court took the statement to mean that he remained at the vehicle.

If the statement is examined within the context of his entire evidence it can only logically be taken to mean that the vehicle drove off without him. To this statement is added his clear and unequivocal statement that the three of them had walked into the bush where he observed the appellant strike the deceased on the head with a stone. Indeed, the inescapable conclusion is that the confusion in the testimony could have been attributed to inaccurate interpretation of the vernacular. The learned assessors would have heard the vernacular and consequently understood the import of the evidence from Tawanda. When it was put to him that he and the appellant had disembarked leaving the deceased behind he said that was not true. He told the court that the police had told him to say that deceased had been killed by strange men.

I am in agreement with the submissions by State counsel that the lies told by the appellant actually buttress the evidence of the State witnesses that the deceased was killed by the appellant. In preferring the evidence of Tawanda to that of the appellant, the court, in fact, accepted Tawanda's evidence as a correct statement related to the events of that day.

In this case, the trial court would have been justified in finding corroboration in the lies told to it by the appellant….,.

Further, and in addition, the fact that the appellant told lies about the events of that fateful day is a factor that has to be considered when drawing inferences about his guilt….,.

In this case, inferences are to be drawn from the untruthfulness of the appellant and the totality of evidence pointing to his guilt.

CONCLUSION

In our view, Tapelo Ndlovu gave his evidence very well. 

His version is clear and straight forward. He neither exaggerated his evidence, nor showed any bias towards any particular person. He is, in fact, a very intelligent boy, who, despite the traumatic experience he endured, was able to narrate events chronologically with sufficient and relevant detail. 

The State opened its case by leading evidence from Andrics Moyo. He is a minor child aged five (5) years. He gave his testimony via video link at the Victim Friendly Court….,.

The court has been urged to treat the evidence of Andrics Moyo with caution. It is been contended by counsel for the accused that the minor child never narrated his story to any of the State witnesses for a period of 2 years. Further, it was argued that evidence of minors should be treated with caution as witnesses of this age are suggestible and can fantasize events. In support of her argument, counsel for the defence relied on the case of S v Sibanda 1994 (1) ZLR 394….,.

It is my view that the evidence of the minor child was given in a clear, detailed manner. The young witness gave a graphic and precise account regarding the commission of the gruesome murder. He was not contradicted in any manner under cross-examination. I find no reason to suggest that the evidence of the minor child was tainted by malice. The evidence was given with such clarity that the events of the fateful day seem to have remained attached in the mind of the youthful witness. I am satisfied that the evidence of the youthful witness was credible in all material respects….

In the case of S v Sibanda 1994 (1) ZLR 394, referred to by defence counsel, the court laid down certain guidelines regarding the approach in dealing with evidence led from minors. The court, in that matter, stated (per headnote) as follows:

“In our law, unlike English law, corroboration is not required. In our law, the approach is that it is advisable to require corroboration of children because their youth indicates immaturity which may cause them to give ill-conceived or misleading evidence. Because our courts are not obliged to require corroboration, the courts must be cognizant of potential objection to the evidence of children which may or may not be valid according to the facts and circumstances of each case.”

In the case of S v Ncube 2014 (2) ZLR 297 (H), this court had occasion to deal with the approach in dealing with evidence given by minor children in sexual cases. This court concluded that:

In the case of Thomas Madeyi v The State HH34-13, the court cited with approval the Indian case of Uttah Pradesh v Krishna Master & Ors AIR 2010 SC 3071 where the Indian Supreme Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. See also S v Machowe SC14-99 and S v Madzombe 1999 (2) ZLR 214 (H).