Jesca Chiseva v The State

The appellant, an attested member of the Zimbabwe Republic Police, was charged with attempting to defeat the course of justice. Trust Phiri had been arrested on rape charges in May 2014. During the investigation, the appellant arranged a psychiatric examination of the rape complainant (Lena Shayamawo) who was certified mentally unstable. The appellant then suggested to Trust Phiri and his parents that for US$75, Trust Phiri should undergo a psychiatric examination and pretend to be mentally unstable, with his mother giving false testimony to affirm his insanity. The appellant indicated this would result in a special verdict and acquittal on the rape charges. When Trust Phiri's relatives approached the Police District Headquarters at Gweru to verify whether this conduct was lawful, the matter came to light and the appellant was arrested. The magistrate's court convicted the appellant and sentenced her to 18 months imprisonment (9 months suspended on condition of good conduct, 9 months suspended on condition of 315 hours community service at St Paul's Primary School in Gweru).

• Whether the State proved the charge of attempting to defeat the course of justice beyond reasonable doubt
• Whether the appellant's defence was reasonably possibly true
• Whether the appellant voluntarily desisted from the crime before its execution as provided in section 189(2) of the Criminal Code
• Whether the sentence imposed was manifestly excessive

Appeal against both conviction and sentence dismissed.

The offence of attempting to obstruct justice is established when the accused person intentionally and consciously does an act calculated to defeat the ends of justice. Once an accused sets in motion a series of actions designed to defeat the course of justice, even if ultimately unsuccessful, they will be guilty of attempting to defeat the course of justice. Under section 189(2) of the Criminal Code, an accused is only exempt from liability for an attempt if they voluntarily desist from the crime before commencement of its execution. Where the plan fails due to external intervention (such as reporting to authorities) rather than voluntary desistance, the offence is complete. The standard of proof beyond reasonable doubt requires that any defence explanation, even if improbable, must be proven false beyond reasonable doubt before conviction (R v Difford 1937 AD 327).

The court observed that attempting to defeat the course of justice goes to the core of the criminal justice system. Such offences are naturally difficult to detect and they defeat the prosecution of serious offences. The court noted that the appellant's conduct, being by a police officer calculated to defeat justice for financial gain, was particularly serious. The court remarked that custodial sentences are called for and justifiable in such cases unless there are weighty mitigating features. The court also commented that the sentence imposed was in fact lenient given the seriousness of the offence.

This case is significant in Zimbabwean criminal law as it clarifies the elements of the offence of attempting to defeat the course of justice, particularly in cases involving police misconduct. It demonstrates that the crime is complete once actions designed to obstruct justice are set in motion, regardless of whether they succeed. The case also emphasizes the serious view courts take of police officers who abuse their positions to subvert the criminal justice system for financial gain. It reinforces that custodial sentences are appropriate for such offences unless there are weighty mitigating features, given that such conduct strikes at the core of the criminal justice system and undermines public confidence in law enforcement.