Kerina Duri v The State

On 9 December 2017 at around 2000 hours, the appellant and complainant (Michael Chinamhora) were involved in a car accident at the intersection of Teviotdale Avenue and Lanner Avenue, Vainona, Harare. A physical altercation ensued regarding responsibility for the accident. The appellant sustained injuries and lost her car keys, reading glasses and earrings. The complainant lost his wrist watch and a wine glass. Police attended the scene that evening but the complainant had left. During a search for her property, the appellant picked up the complainant's items but did not hand them to police, instead taking them to her house. The following day (10 December 2017), both parties returned to the scene independently. The appellant informed the complainant she had his property and they agreed to meet at 1600 hours for her to return them, but she failed to appear. The appellant reported the accident and assault to police on 10 December 2017 but did not surrender the complainant's property. Days later she informed police she had the property. Police directed her to return it to the complainant but, after receiving legal advice from her lawyer, she refused. The complainant was subsequently convicted of driving without due care and of assaulting the appellant. The appellant retained the property and only produced it during trial.

• Whether the trial court erred in failing to give reasons for dismissing the appellant's application for discharge at the close of the State case
• Whether recovery of property at a scene of a crime with the intention of using it as an exhibit amounts to unauthorised borrowing under section 116 of the Criminal Law (Codification and Reform) Act
• Whether any of the defences in section 118 of the Criminal Code were available to the appellant
• Whether the appellant's belief that she was legally entitled to retain the property as exhibits constituted a valid defence
• Whether advice from a legal practitioner regarding retention of property constitutes a defence under section 236 of the Criminal Code

The appeal was dismissed. The conviction for contravening section 116 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the sentence of a fine of $50.00 (with 30 days imprisonment in default) were upheld.

1. A genuine but mistaken belief that one has a legal right to retain another person's property does not constitute a defence to a charge of unauthorised borrowing under section 116 of the Criminal Law (Codification and Reform) Act; such belief falls under section 119(1)(a)(i) as an excluded defence and is only relevant in mitigation under section 119(3). 2. The defences available under section 118 for unauthorised borrowing are limited to: (a) mistaken belief that the owner consented or would have consented; (b) mistaken belief that the property was one's own; or (c) mistaken belief that the property had been finally and absolutely abandoned. 3. Legal advice from a private legal practitioner does not constitute a defence under section 236 of the Criminal Code, which applies only to advice from government officials primarily responsible for administering the particular statute. 4. An irregularity in refusing to discharge an accused at the close of the State case will not vitiate a conviction if the totality of evidence (including defence evidence) proves guilt and no substantial miscarriage of justice occurred.

The court made critical observations about the legal advice given to the appellant, stating it was unfortunate that she was "led down the garden path by her lawyer resulting in her defending the indefensible and appealing against the unappealable." The court observed that the lawyer's advice to retain the property amounted to advising the appellant "to take the law into her hands." The court also noted that questions about whether a charge is defective must be raised by way of exception under section 180 of the Criminal Procedure and Evidence Act at the commencement of trial, citing R v Menses, and cannot be raised at the close of the State case. The court further observed that even if the appellant had been entitled to retain the property as exhibits, the justification ceased once: (1) the complainant's identity became known the day after the accident, and (2) the complainant had been held accountable through payment of an admission of guilty fine and conviction for assault, meaning the property was no longer relevant.

This case clarifies the application of sections 116, 118, 119 and 236 of the Criminal Law (Codification and Reform) Act in Zimbabwe regarding unauthorised borrowing. It establishes that a genuine but mistaken belief in a legal right to retain property does not constitute a defence to unauthorised borrowing and is only available in mitigation of sentence. The case also confirms that legal advice from a private lawyer does not constitute a defence under section 236, which is limited to advice from government officials responsible for administering the relevant statute. The judgment emphasizes that individuals cannot take the law into their own hands by retaining others' property as potential evidence, even on legal advice, when directed by proper authorities (police) to return it. The case also reiterates the principle from S v Kachipere that failure to discharge at close of State case is not necessarily a sustainable ground of appeal if the totality of evidence justifies conviction.