S v MUPATSI 2010 (2) ZLR 529 (H)

Flynote

Criminal procedure - charge - splitting of charges - rule against improper splitting of charges - dominant purpose of accused in committing interrelated offences - accused should only be charged with that offence which was his dominant purpose

Criminal procedure - onus of 'proof' - explanation given by accused - no onus on an accused to convince court of truth of his explanation - if explanation reasonably possible, accused entitled to acquittal

Headnote

"No onus rests on an accused to convince the court of the truth of any explanation which he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal" (dicta per Greenberg J in R v Difford 1937 AD 370 at 373 followed).

"Where the accused, in pursuance of the dominant intention, commits a number of offences, the proper thing to do is to charge him with only that offence which was his dominant purpose" (dicta per Beadle CJ in S v Brereton 1970 (2) RLR 272 (A) at 277A followed).

The appellant was charged, convicted and sentenced in the magistrates court, firstly, of obstructing or defeating the course of justice and, secondly, of malicious injury to property. The evidence revealed that he was apoliceman who solicited a lift on a rural road, from three other policemen, whom he did not know. These policemen were in a truck and on their way to a business centre in order to make an arrest. The appellant and three others, one of whom was his brother and coincidentally the very person whom the policemen intended to arrest, climbed into the back of the truck. Thereafter, the three police details realized that the person they were going to arrest was seated in the back of truck. The driver stopped the vehicle and all three police details attempted to arrest him. The appellant vigorously opposed their attempt to arrest his brother and, in the course of so obstructing the police, threw stones, injuring one them and damaging the truck. In an appeal from the magistrate's court, the question arose as to whether there had been an improper splitting of charges.

Held, that, as the evidence established that the appellant's dominant purpose was to prevent the arrest of his brother and the police vehicle was damaged in trying to achieve that purpose, it was an improper splitting of charges to charge the appellant with the crime of malicious damage to property as well as that of defeating or obstructing the course of justice. The conviction and the sentence on the latter charge had, therefore, to be set aside.