Norman Gandidzanwa v The State

On 14 January 2017, the appellant was arrested along Samora Machel Avenue Corner Leopold Takawira Street, Harare. The State's evidence showed that on 13 and 14 January 2017, a man identifying himself as P. Mureriwa signed into the register at Pearl House. On 14 January 2017, this man brought two other men (the complainants) whom he identified as his brothers into the building. The three men later emerged from inside the building, with the man who called himself Mureriwa wielding a pistol and threatening to shoot anyone impeding his flight, while the other two men chased him, shouting that the pistol was not loaded and calling for public assistance. A police officer on patrol was attracted by the commotion and pursued the fugitive. The appellant was apprehended by an alert member of the public. Upon searching him at the police station, police recovered a pistol and a metal identity document belonging to Paidamoyo Mureriwa. The appellant claimed he was along Leopold Takawira Street where he had taken his relative to board a Bindura bound commuter omnibus and that thieves had deceived him by claiming he had dropped a metal identity document in order to rob him of US$700.00 he had received from his relative.

• Whether the trial court erred in making findings on credibility by believing the State witnesses despite alleged contradictions in their evidence
• Whether the trial court properly rejected the appellant's defence of alibi
• Whether the appellant court should interfere with the trial court's findings of fact and credibility
• Whether the sentence imposed was harsh and excessive

The appeal against both conviction and sentence was dismissed. The appellant's convictions for two counts of attempted armed robbery and one count of unlawful possession of a firearm were upheld. The sentence of eight years for the two counts of attempted armed robbery and 16 months for unlawful possession of a firearm (to run concurrently) was upheld. The metal identification document and the Llama pistol found on the appellant's person remained forfeited to the State.

An appellate court should not disturb a trial court's findings on credibility and factual determinations without being shown that the trial court's decision was wrong. The trial court enjoys the unique advantage of observing witness demeanor and immersing itself in the atmosphere of the trial. To successfully challenge findings of fact on appeal, an appellant must demonstrate on the evidence on record how the trial court's assessment was affected by material inconsistencies or inaccuracies, or how the trial court failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise went completely wrong. It is not sufficient to merely allege contradictions in evidence.

The Court observed that it seemed highly unlikely that if the complainants had merely seen the appellant receive US$700.00 and decided to rob him by distraction, their evidence would read as coherently as it did in the record and would find corroboration from the independent security guard and his register. The Court noted that in sentencing for attempted armed robbery, courts should take into account the degree of pre-planning, the heartless execution of the criminal plot, the careful identification and targeting of victims, and the choice of isolated locations to confine victims.

This case is significant in Zimbabwean criminal law and appellate procedure for reinforcing the well-established principle that appellate courts will not interfere with trial courts' findings on credibility unless it can be demonstrated that the trial court went completely wrong. The judgment emphasizes the trial court's advantage in observing witness demeanor and assessing credibility, and places the burden on appellants to demonstrate on the record how the trial court's assessment was materially affected by inconsistencies or inaccuracies. The case also illustrates the proper approach to evaluating defences of alibi and the assessment of sentences in serious premeditated crimes involving firearms.