October 24, 2022

Jailed transporter freed

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Court Reporter

JAILED businessman, Alphonse Mushanawani, who was convicted for dealing in dangerous drugs after 710kg of dagga was found in his vehicle in 2018 has been freed by the Supreme Court.

Mushanawani, together with Brighton Dinda were in 2019 jailed for an effective eight years over the alleged crime.

Represented by Admire Rubaya, Mushanawani raised an alibi defence distancing himself from the scene of the crime saying he was arrested at his house in Glen Norah and not Damofalls as alleged by the State.

He said he had hired out the vehicle in which the dagga was allegedly found and there was possibility those who hired it used it for crime.

It was his further argument that the police failed to collect fingerprints on the stirring wheel to prove he was the one driving the vehicle.

Regardless, he was convicted and jailed and the magistrate also ordered the forfeiture of the vehicle

Mushanawani took up the matter appealing against both conviction and sentence.

Appearing for him, Lovemore Madhuku challenged the decision by the lower court to overlook the alibi defence raised before trial.

Madhuku also contended that the court a quo ought to have conducted an investigation to inquire whether the defence of alibi was false beyond a reasonable doubt. He further argued that the court a quo only assessed whether the evidence led by the respondent was credible and did not do the same in respect of the appellant’s evidence

“. . .the court a quo misdirected itself and erred in law in not finding that the convicting court (that is, the magistrates court) had misdirected itself in convicting the appellant in circumstances where no reasonable court could have failed to find that it was reasonably possible that it might be true that the appellant’s motor vehicle had been hired and that the offence had been committed by persons who had hired the vehicle,” he argued.

The Supreme Court bench concurred with the argument saying the alibi defence raised was not investigated though it was raised at a good time before the completion of investigations.

The judges described the conduct of the police as deplorable.

“The conduct by the police in casu is deplorable considering the seriousness of the allegations against the appellant in this matter. Such conduct has serious implications on the criminal justice delivery system in that innocent persons can be convicted, whilst the converse is that guilty persons can be acquitted due to poor conduct or lack of necessary investigations in a matter,” the court said.

“It is problematic in the circumstances to say that the evidence of the police relating to the place of the arrest was corroborated. This is compounded by the fact that the State had not investigated the alibi to establish its truthfulness or otherwise,”

The court said once an alibi defence is raised, it is settled in the country laws that it should be investigated.

“Regarding the first ground of appeal, Mr Madhuku submitted that the trial court did not exercise its mind on the requirements of the defence of alibi and the applicable settled principles of law in this regard to the extent of only mentioning the word “alibi” once in its judgment. He further submitted that the court a quo erred in not correcting the point. It correctly identified the principles of law applicable but those principles were not applied.”

“However it is settled in our law, through case law, that once an accused raises the defence of alibi that defence must be investigated and a definitive position taken by the court. ”

The Supreme Court also freed Dinda saying though he was not part of the proceedings the same fate befalls him.

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