News / National
Thieving police officers cleared
07 Dec 2020 at 20:37hrs | Views
TWO police officers who were serving a five year jail term each for stealing money from a suspect's house during an unauthorised search have been cleared by the High Court.
Nyasha Biyesi and Crispen Dear were convicted of theft and criminal abuse of office by a Mbare Magistrates' Court in July and jailed. They appealed against conviction and sentence, arguing that the magistrates' court had erred by treating the charges separately when criminal abuse of office was an alternative charge.
They further argued that no regard had been given to provisions of the law which allow police officers to conduct searches without warrants in certain circumstances. High Court judge Justice Benjamin Chikowero noted that while Biyesi and Dear had been convicted, the State had not laid out evidence against them.
"There was no evidence apart from the complainant's mere say so, that there was US$9 000 in the house, of which US$3 700 was stolen. In any event, the complainant herself was not consistent." Chikowero said
"In her statements to the police she said the total amount that was in the house, before the theft, was $4 000. This discrepancy between her evidence and her statement was not explained.
Section 269 of the (Criminal Procedure and Evidence) Act allows conviction on the single evidence of a competent and credible witness. The complainant was not a credible witness." Chikowero also noted that under the circumstances the duo had not done anything illegal by conducting the search without a warrant, adding that their actions were in compliance with section 51 of the Criminal Procedure and Evidence Act, which allows an officer to search a container, a person or premises if they believe that obtaining a warrant would prevent the seizure or defeat the object of the search.
"There is no ambiguity in this provision. The appellants had discretion to conduct the search without a warrant. All they needed to do in exercising that discretion was to satisfy themselves that if they applied for a search warrant the same would be issued to them and that the delay occasioned by obtaining a warrant would mean that the dagga would have been spirited away the meantime thus rendering the search an exercise in futility," Chikowero said.
According to records, Dear and Biyesi conducted a search without a warrant at a suspect's house they believed was dealing in dagga. The suspect later accused the duo of stealing US$3 700 which was in her home.
They were each convicted by a magistrate of criminal abuse as public officers and sentenced to 30 months' imprisonment of which 12 months were suspended for five years on condition of good behaviour.
They were also convicted on alternative charges of theft and sentenced to 60 months' imprisonment of which 12 months were suspended for five years. Another 12 months were suspended on condition they refund the victim US$1 850 through the clerk of court on or before October 30.
Nyasha Biyesi and Crispen Dear were convicted of theft and criminal abuse of office by a Mbare Magistrates' Court in July and jailed. They appealed against conviction and sentence, arguing that the magistrates' court had erred by treating the charges separately when criminal abuse of office was an alternative charge.
They further argued that no regard had been given to provisions of the law which allow police officers to conduct searches without warrants in certain circumstances. High Court judge Justice Benjamin Chikowero noted that while Biyesi and Dear had been convicted, the State had not laid out evidence against them.
"There was no evidence apart from the complainant's mere say so, that there was US$9 000 in the house, of which US$3 700 was stolen. In any event, the complainant herself was not consistent." Chikowero said
"In her statements to the police she said the total amount that was in the house, before the theft, was $4 000. This discrepancy between her evidence and her statement was not explained.
"There is no ambiguity in this provision. The appellants had discretion to conduct the search without a warrant. All they needed to do in exercising that discretion was to satisfy themselves that if they applied for a search warrant the same would be issued to them and that the delay occasioned by obtaining a warrant would mean that the dagga would have been spirited away the meantime thus rendering the search an exercise in futility," Chikowero said.
According to records, Dear and Biyesi conducted a search without a warrant at a suspect's house they believed was dealing in dagga. The suspect later accused the duo of stealing US$3 700 which was in her home.
They were each convicted by a magistrate of criminal abuse as public officers and sentenced to 30 months' imprisonment of which 12 months were suspended for five years on condition of good behaviour.
They were also convicted on alternative charges of theft and sentenced to 60 months' imprisonment of which 12 months were suspended for five years. Another 12 months were suspended on condition they refund the victim US$1 850 through the clerk of court on or before October 30.
Source - dailynews
