Gardner v State (26 of 2024) [2024] ZWSC 26 (12 March 2024)

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 REPORTABLE

(26) DAVID EDWARD GARDNER v THE STATE

SUPREME COURT OF ZIMBABWE BHUNU JA, CHIWESHE JA & MUSAKWA JA HARARE: 01 JUNE 2023 & 12 MARCH 2024

G. Nyoni, for the appellant T. Kangai, for the respondent

MUSAKWA JA: This is an appeal against the judgment of the High Court (the court a quo ) which dismissed the appellant’s appeal against conviction on 3 counts of sexually related crimes against minors. FACTUAL BACKGROUND Although the complainants are now adults, for purposes of their privacy, they will be referred to by their initials only. The appellant was arraigned before the Regional Magistrates Court facing two counts of contravening s 3 (1) (b) of the Sexual Offences Act, [ Chapter 9:21] and two counts of contravening s 71 (1) (a) of the Criminal Law (Codification & Reform) Act, [Chapter 9:23].

The charges on which the appellant was convicted read as follows:

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 “1. C/S 3 (1) (b) of the Sexual Offences Act [Chapter 9:21]: - In that sometime in 2002 on a date unknown to the Prosecutor and at 146 Enterprise Rd, Highlands, Harare David Edward Gardner committed an immoral or indecent act upon a young person, that is to say the accused fondled the genitals of R, a 14-year-old boy.

2. C/S (3) (1) (b) of the Sexual Offences Act [Chapter 9:21]: - In that in November 2005 but on a date unknown to the Prosecutor and at Afdis Camp, Nyanga, David Edward Gardner committed an immoral or indecent act upon a young person that is to say the accused put his hand inside the shorts and on or about the groin area of T, a 14-year-old boy.

3. Sexual Offences against young person outside Zimbabwe as defined in s 71 (1) (a) of the Criminal Law (Codification and Reform Act [Chapter 9:23]: - In that during the month of August 2006 but on a day to the Prosecutor unknown and in Lausanne, Switzerland David Edward Garner a Zimbabwean resident committed an indecent act upon a young person that is to say the accused put his hand inside the jeans of J trying to find his boxer shorts flyer and did thereby put his hand on or about the groin area of J.

4. Sexual Offences against a young person outside Zimbabwe as defined in s 71 (1) (a) of the Criminal Law (Codification) Act [Chapter 9:23]: - In that during the month of August 2006 but on a day to the Prosecutor unknown and in Budapest, Hungary David Edward Gardner, a Zimbabwean resident committed an indecent act upon a young person that is to say the accused in the early hours of the morning reached across to T, a young person whilst T was in his own bed inside his blankets and commenced to rub T’s leg with his foot around the ankle area.”

The appellant pleaded not guilty to all the charges. His defence was as follows: The allegations were as a result of the complainants being influenced by their parents. The complainants were simply plotting his downfall. The reason why the complainants raised the charges against him was because of the pending labour case he had against St John’s College (Ref LC/rev/H/160/66). In respect of the first count, he stated that he was not able to give particulars as the charge and outline of facts were vague and embarrassing.

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 Twelve witnesses who included the complainants and their parents testified against the appellant. On the other hand, three witnesses testified for the defence. R first knew the appellant when he was only 7 years old. He was involved in triathlon when he was at Eaglesvale Junior School and the appellant was the coach. Regarding the charge against the appellant, R testified that the appellant invited him to spend the night at house number 146 Enterprise Road, Harare. The appellant had just taken occupation of the residence. The two slept in the same room but on separate mattresses. R woke up in the early hours to find the appellant stretched over him, with the appellant’s hand inside his boxer shorts and fondling his genitals. R was shocked and frightened. He proceeded to the lounge where he spent the rest of the night. During the course of the morning, R informed the appellant that he was not well. The appellant drove him to his residence. R later informed his mother. When the appellant returned on the same day in order to print a training programme, R remonstrated with him. The two were in the driveway. Their exchanges were overheard by R’s mother. The appellant then apologized to R. In the second count, T attended a triathlon training camp in Nyanga in February 2006. Whilst asleep during the night, the appellant placed his hand inside T’s boxer shorts and fondled his groin. The appellant was in a kneeling position. Upon T waking up, the appellant went out and left behind a bottle of Johnson’s baby oil. When T followed to the kitchen, he found the appellant shaking and pouring water on himself. Later when T confronted him, the appellant claimed to have been looking for his dog. This is despite their having been no

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 evidence of the appellant taking a dog to Nyanga. T reported the incident to the assistant coach, Rory Mackie. T did not report to his parents as he feared being barred from further training. When T’s parents arranged for him to attend a World Triathlon Championship in Switzerland as his birthday present, T insisted that he be accompanied by one of the parents. The trip was aborted as a result. Apparently, the parents paid for the third complainant’s trip. Rory Mackie is the one who reported the abuse to T’s parents. This prompted Gordon Mackie to lodge a report at Borrowdale Police Station. Gordon Mackie, T’s father confirmed slapping the appellant over the issue. J attended the Switzerland trip which T declined. He shared the same room with the appellant. Earlier on during dinner, R had told him that if anything happened to him, he should scream. Whilst asleep during the night, he felt a sensation in his groin. This was around 3 a.m. Upon waking up he found the appellant’s hand inside his boxer shorts and touching his groin. The appellant dived behind a bed. J did not talk to the appellant then as he was frightened. During the course of the morning the appellant approached J who was seated on the stairs and was crying. The appellant sought to know what the problem was but J did not reply. When the boys met in some room someone asked J if he had slept well and he replied that there had been a problem but did not elaborate. Later, and at the race venue, J informed R about the incident. R later called his mother and Rory Mackie and informed them about the incident. In his letter of resignation to the Board of Governors, the appellant had apologised for the incident, which he termed a practical joke.

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 The trial court found the appellant guilty on the first three counts and sentenced him to a total of 24 months imprisonment of which 12 months were suspended for 5 years on condition that the appellant did not commit a similar crime within that period. Aggrieved by the verdicts of the trial court, the appellant filed his appeal before the court a quo. SUBMISSIONS BEFORE THE COURT A QUO Appellant’s submissions Mr Samukange, who appeared for the appellant in the court a quo submitted that the evidence of Theresa Van Wyk, who testified as a defence witness afforded the appellant with an alibi which the trial court did not make a finding on. He further argued that there was a motive for pressing charges against the appellant which the trial court did not address. He also argued that the evidence of Mrs Gibbons was not credible and did not corroborate that of her son. He further argued that the evidence of the complainants was not consistent. It was also argued that the sentence was severe and induced a sense of shock given the modern trends in sentencing. Respondent’s submissions The respondent made the following submissions: The appellant was convicted on the basis that the witnesses were credible. In that respect, the complainants had given detailed testimonies. There was no good reason as to why the appellant would want to play a practical joke on one of the complainants at 3 am. There was nothing to support the claim that there was a conspiracy against the appellant as all the witnesses highly regarded him. The similar fact evidence that was led was striking. On sentence, the trial court properly exercised its sentencing discretion and passed an appropriate sentence in the circumstances.

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 FINDINGS OF THE COURT A QUO The court a quo found that there was nothing grossly irregular in the proceedings of the trial court. In its view, the factual findings did not defy reason or common sense. With regard to sentence, it found that the trial court properly balanced the mitigating and aggravating factors. However, the court a quo held that the delay in the hearing of the appeal justified interfering with the sentence. It set aside the sentence and substituted it with 24 months’ imprisonment of which 12 months were suspended for 5 years on condition of good behaviour, with the remaining 12 months being suspended on condition of performing 460 hours of community service. Aggrieved by the decision of the court a quo regarding conviction, the appellant filed the present appeal on the following grounds:

Grounds of Appeal

“1. The court a quo misdirected itself in accepting the reasoning and findings of the trial court without first evaluating the evidence for itself.

2. The court a quo erred in finding that the trial court had exercised the requisite degree of caution in considering the evidence of the schoolboy complainants.

3. The court a quo erred in approaching the case from the viewpoint that the appellant was required to prove his innocence at trial.

4. The court a quo erred in failing to take cognizance of the fact that the trial court had ignored the inconsistencies, improbabilities and irregularities in the State Case.

5. The court a quo erred in accepting the finding of the trial court that there was evidence corroborating that of the complainant G.

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22

6. The court a quo erred in failing to take cognizance of the fact that the trial court had ignored the glaring inconsistencies between statements made by the complainants T and J prior to trial and their evidence in court.

7. The court a quo misdirected itself in speculating that the trial court had considered the evidence of a defence witness, Mrs Van Wyk, which exonerated the appellant on the first count when the record shows that the court had not done so.

8. The court a quo misdirected itself in finding inadmissible reference to the judgment of the Labour Court No. LC/H/246/2007 which was based on facts that gave credence to the defence case.

9. The court a quo misdirected itself in finding that the trial court was correct in rejecting the appellant’s defence of conspiracy when neither it nor the trial court considered the evidence on which the appellant relied in support of that defence and accordingly erred in failing to find that it was reasonably true.”

The appellant later amended his grounds of appeal which state that: “1. The appellant did not receive a fair trial as required by s 69 of the Zimbabwe Constitution in that prior to the commencement of the trial, the state Prosecutor assembled state witnesses collectively in one office and discussed the case with them which conduct was irregular and prejudicial to appellant. 1.1 The said irregularity was fundamental especially if regard is taken of the following: 1.1.1 The complainants engaged in some discussion concerning the appellant’s conduct prior to him allegedly committing the alleged offences and even after the alleged commission of the offences.

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 1.1.2 The complainants and the rest of the State witnesses had the opportunity to widely discuss the matter among and between themselves. 1.1.3 The conduct of investigations by one Margret Elizabeth Grobellar appointed by the Board of Governors at St John’s College to act as the investigator for the Board in anticipation of the contemplated disciplinary action provided an enormous opportunity for the complainants and the rest of the state witnesses to discuss the alleged matter and thus consciously or unconsciously influence each or one another.

2. In any event the disciplinary hearing and its deliberations were irrelevant to the criminal proceedings and no reliance should have been placed on them.” SUBMISSIONS MADE BEFORE THIS COURT Appellant’s submissions Mr Nyoni, counsel for the appellant submitted that the appellant’s right to a fair trial as enshrined in s 69 of the Constitution was violated. He argued that the Prosecution is an integral part of the court such that if a Prosecutor commits an irregularity, it should be taken that the court has committed the irregularity. Relying on the case of Smyth v Ushewokunze 1997

(2) ZLR 544 (S) he argued that the fact that the Prosecutor allowed the four complainants to refresh their memories whilst in the same room would lead any reasonable person to question the Prosecutor’s impartiality.

Counsel for the appellant further argued that Mr Drury who was representing St Johns School, was allowed to correct one of the complainants’ statements whilst in the Prosecutor’s office. The correction related to the date of the alleged sexual assault. He submitted

Judgment No. SC 26/24 Criminal Appeal No. SC 110/22 that the High Court had considered the issue and concluded that there was no gross irregularity. He also urged this Court to exercise its review powers in terms of s 25 of the Supreme Court Act [Chapter 7:13]. Counsel for the appellant further submitted that the court a quo erred in its finding that the appellant had admitted one of the charges when he was not told what it is he had committed. He further averred that the Regional Court made findings not supported by evidence as there was no evidence on record to show that the appellant moved from his mattress to the complainant’s mattress. Respondent’s submissions Mr Kangai, for the respondent argued that the issue of the Prosecutor’s conduct was never raised in the lower courts. He also argued that there was never an application for review to the High Court. He argued that the appellant failed to timeously assert his right. He further averred that the court on appeal is confined to the four corners of the record and not to what could have been argued. He further highlighted that during the trial counsel for the appellant had left the issue of the Prosecutor’s conduct hanging and did not cross examine the witnesses on the issue.