GOWORA
JA: On
28 January 2015, the appellant was arraigned before the High Court
sitting at Gweru on a charge of murder as defined in section 47 of
the Criminal Law (Codification and Reform) Act [Chapter
9:23]
(the “Criminal Law Code”).
The
allegations against him were that on 20 September 2013, at Gore
Village, Chief Nyamhondo, the appellant had caused the death of
Chipochashe Ndlovu, a female juvenile, by forcibly having sexual
intercourse with her, and assaulting her all over her body with an
unknown object, intending to kill her or realising that there was a
real risk or possibility that his conduct might cause her death.
The
appellant tendered a plea of not guilty to the charge. He was
convicted of murder with actual intent to kill the deceased and was
sentenced to death.
The
appellant noted an appeal against the sentence of death only.
However,
in view of the death penalty imposed upon him, in terms of the law an
automatic right of appeal lies against both conviction and sentence.
The
facts giving rise to the charge against him were as follows:
The
deceased was a child named Chipochashe Ndlovu. At the time of her
death she was aged 3. Her mother, Kudzai Dube (Kudzai) was
appellant's common law wife. At the time of deceased's death, the
union was of recent duration. The deceased was not related to the
appellant.
It
is common cause that the deceased had been under the care of Netsai
Dube (Netsai) her maternal grandmother since her birth. When the
mother left to go and live with the appellant she took the child with
her. She had not obtained permission and as a result Netsai searched
for their whereabouts. She located them after two weeks and took the
deceased home where she remained.
A
few days before her death, Kudzai begged Netsai to let her take the
child for some time. Kudzai claimed that she missed the child. The
grandmother agreed reluctantly. Kudzai then left with the deceased.
On
the fateful day the appellant indicated to Kudzai that he wanted to
take the deceased with him to the bush to fetch firewood. Kudzai
refused to allow him to take the deceased. The appellant threatened
to assault her. She then agreed reluctantly. The two then left.
An
hour later, the appellant returned carrying the deceased on his
shoulder. She was unconscious. The appellant placed her in the
bedroom hut. The appellant then informed Kudzai that the deceased had
suffered an epileptic fit whilst they were in the bush. Kudzai went
to check on the deceased. She observed fresh bruises on the
deceased's right forehead. There was blood and froth coming out of
the child's mouth. She checked for a pulse and found none. She
deduced that the child was dead and went to inform her neighbour
Makazviita Munengewa of the situation.
The
appellant and his brother then transported the deceased to Netsai's
homestead. They arrived during the night and placed the child in a
hut. Unaware, the following morning Netsai proceeded to her garden
from where she was summoned after a short while. On returning home
she discovered that the appellant had brought the deceased's body
to her homestead the previous evening. The appellant was not present.
A report was made to the neighbourhood watch committee who informed
the police.
The
police attended and advised Netsai to convey the body to the hospital
immediately due the state of decomposition that had set in. Netsai
decided to clean the body of the deceased before it could be conveyed
to the hospital. During the process she observed injuries on the
deceased which led her to conclude that the child had been sexually
molested.
The
appellant was arrested shortly thereafter.
At
the hospital, the body of the deceased was examined by Winnie Gumbo a
State registered nurse. The nurse observed injuries which also led
her to form the opinion that the deceased had been sexually molested.
A
few days later, a pathologist, Dr Pesanai, conducted a post mortem
examination and compiled a report. The body was swollen due to
decomposition. The post mortem examination was unable to establish
the exact cause of death. The pathologist was able to amplify the
report during the trial. His conclusion was that the cause of death
was a laceration to the rectum resulting from the rape and the
sodomy.
Both
in his defence outline and in the warned and cautioned statement the
appellant denied killing the deceased. He also denied having sexually
assaulted her.
In
his warned and cautioned statement which was confirmed before a
magistrate, the appellant stated that he took the deceased to the
nearby bush to look for firewood. He sat her on a footpath while he
fetched firewood. After a while he observed that she had fallen to
the ground. He suspected that she had suffered from epileptic fits.
He denied having caused her death.
In
the defence outline he stated that the deceased had accompanied him
to the goat pen within the homestead. She sat on a path whilst he
fetched firewood. When he looked at her next, he observed that she
was having fits. She was frothing from the mouth and had fallen to
the ground. He picked her up and carried her to the homestead where
he placed her in one of the huts. She died later on the same day.
The
court a
quo
concluded that the appellant had taken the toddler into the bush with
him for the sole purpose of killing her.
In
coming to this conclusion the court had regard to the evidence of
several witnesses who had access to the body before it decomposed.
Amongst
the witnesses were the two police officers, Simbarashe Makopa and
Freedom Nyamutsamba who attended at the deceased's grandmother's
homestead in reaction to a report of rape and murder. They found the
deceased's body lying in a bedroom hut. Upon examination of the
body, they observed bruises on the right side of the head, the back,
the forehead and the abdomen.
The
trial court also took into account the evidence of the grandmother,
Netsai.
She
had cleaned the body and had observed that the deceased had bruises
on the back and lower abdomen. The body was swollen on both sides of
the neck and there was froth coming out of the deceased's mouth and
nose. Her genitalia was described by the witness as “open” and
there were traces of faeces. From the injuries she observed, Netsai
suspected that the deceased might have been sexually abused. Like the
other witnesses, she had also observed bruises on deceased's back.
The witness discounted the suggestion by the appellant that the
deceased had suffered from epileptic fits, and further that she had
died from a bout of fits.
In
addition, the court had regard to the evidence of the nurse who saw
the body upon its delivery at the mortuary after its recovery by the
police.
This
witness testified that the corpse had fresh bruises on the right eye,
fresh bruises on each side of the abdomen just above the groin and a
fresh bruise at the back. The nurse said the bruises on the abdomen,
back and right eye made her conclude that force had been applied to
those areas using fingers.
There
was also a fresh bruise just between the lumber and sacral region of
the back.
An
examination of the genital area revealed bruising on the labia
majora
as well as bruises on both sides of the labia
minora.
Although the hymen was intact the nurse was of the opinion that
penetration had been effected.
Her
evidence was that the deceased had been sexually abused.
At
the time of these events she had been a nurse for twenty-five years.
The trial court found her to be a fair witness with no axe to grind
against the appellant.
The
court also considered the evidence of Kudzai, the deceased's
mother.
She
confirmed what the appellant stated in his extra-curial statement
that he had taken the child to the bush on the pretext that he was
going to look for firewood in the bush. The deceased was in good
health and had never suffered from epileptic fits. Two hours later
the appellant returned. He was carrying the deceased on his shoulder.
She was bleeding from the nose. In addition, she was frothing from
the mouth. She denied that the deceased suffered from epileptic fits
as claimed by the appellant.
The
pathologist examined the body of the deceased on 25 September 2013. A
period of five days had elapsed from the time of death.
The
pathologist observed a small laceration measuring 0.5cm on the
child's genitals. The anus was dilated and there was a laceration
inside the rectum itself. The skull plates were open and had
separated. Due to decomposition no obvious cause of death was
observed. However, the examination showed that the child had been
sexually assaulted. There was penetration of the genitalia which went
through the anus causing the laceration in the rectum.
The
pathologist candidly admitted that the body was in an advanced state
of decomposition. He was unable to discount the effects of
decomposition on the body. What was certain however was the fact that
the child had been sexually assaulted both through the vagina and the
anus.
The
assault through the anus
caused the laceration in the rectum which he reported on. His
evidence was that the rectum is in the same line with the intestines.
These are strong organs capable of expanding. The rectum like the
intestines can take more pressure than other organs. Because of the
ability to withstand force, the laceration in the rectum could only
have come about through the application of force, in this case a
rape. As a result, he discounted the possibility of the laceration in
the rectum having been caused by decomposition. It was more likely
that the cause of the laceration was due to sexual assault.
On
these facts the appellant was convicted of murder with actual intent
to kill.
After
a finding that the murder was committed under aggravating
circumstances the trial court imposed a sentence of death.
The
grounds of appeal are aimed at the sentence. They do not challenge
the conviction. Nevertheless, it is appropriate to consider the
appropriateness of the conviction before dealing with the appeal
against sentence.
On
behalf of the appellant, Mr Muzvuzvu
submitted that the circumstances surrounding the commission of the
offence were such that it was difficult to challenge the appellant's
conviction on the charge of murder with actual intent to kill. He set
out for the benefit of the court those factors which in his opinion
confirmed the correctness of the finding of guilt of murder with
actual intent by the trial court.
He
said that the appellant floundered when asked to give a reason why he
wanted a three-year old minor to assist him in fetching firewood.
Protests from the deceased's mother against the proposal were met
with threats of physical assault from the appellant. When the
appellant returned with the deceased he made no attempt to get any
sort of help for the deceased even though he claimed that she was
unconscious and not dead. This belied his assertion that she had
suffered epileptic fits when he took her to the bush to fetch
firewood. He then proceeded to prepare food for himself in the same
hut that he had placed her. He was completely unmoved by the lifeless
body of the deceased and he proceeded to eat in the same hut.
The
trial court concluded that the appellant intended to kill the
deceased. The finding by the trial court as to intent was to the
effect that the appellant desired to kill the deceased.
This
form of mens
rea
is what is commonly referred to as dolus
directus.
In
his book, Principles of Criminal Law, 5th
ed, p350, the learned author, Jonathan Burchell defines dolus
directus
as follows:
“This
is intention in its ordinary grammatical sense: the accused meant to
perpetrate the prohibited conduct or to bring about the criminal
consequence. This type of intention will be present where the
accused's aim and object was to perpetrate the unlawful conduct or
to cause the consequence even though the chance of it was small.”
The
question whether the appellant killed her with actual intent is a
factual one.
The
determination of the issue of mens
rea
must relate to the facts surrounding the commission of the offence
with which the appellant was charged and convicted.
The
evidence against the appellant is largely circumstantial.
From
the evidence, she had been brutalised. She had also been sexually
abused. She died from injuries as a result of the sexual abuse. He
was, on his own admission, the last person to see her alive. He
admitted in his warned and cautioned statement that when he returned
home with her she was unconscious. When he took her from her mother
she was walking on her own two feet.
The
only inference is that he was the one who abused her sexually
resulting in the state that she was in upon their return to the
homestead.
The
issue for determination therefore is whether or not the court a
quo
was correct in its conclusion that the only possible inference in the
circumstances of this case is that the appellant killed the deceased
with an actual intent to kill her.
The
test on inferential reasoning was set by WATERMEYER JA in R
v Blom
1939 AD 188. It was stated therein that there are two cardinal rules
of logic in such enquiry. At pp202-3, the learned jurist said the
following:
“In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.”
In
this case the proven facts are the following:
The
deceased's body was in such an advanced state of decomposition that
the pathologist was unable to establish the exact cause of death. As
a result, the post-mortem report is silent as to the actual cause of
death. However, the tenor of the evidence of the witnesses who saw
the deceased shortly after the appellant brought her home from the
bush bears testimony to the application of force to her body as well
as her private parts.
In
view of the evidence of the pathologist that the proximate cause of
death was the laceration to the rectum, the question before the court
is whether, by raping the deceased in the manner described by the
pathologist, the appellant meant to perpetrate the prohibited conduct
or bring about the criminal consequence.
The
prohibited conduct in this case is the murder of the deceased by the
appellant. Did he mean to cause her death in acting as he did?
In
R
v Kewelram
1922 AD 213, the court had to consider whether an accused person
charged with setting fire to his stock in order to defraud an
insurance company had been properly convicted of arson by a jury in
relation to the store in which the stock was. The building itself
belonged to someone else. At p216 INNES CJ resolved the question in
this manner:
“The
jury were satisfied that the accused must have realised the
consequences of his action. Realising that the fire must spread from
the stock to the building, he, for his own fraudulent purposes, set
fire to the stock. Under these circumstances the inference of a
wrongful intention to burn the store was amply justified. Nor did I
understand that Mr
Hoexter
seriously disputed that proposition. He contended that although an
intention to burn the store might be implied, it did not follow that
there was an intention to injure the owner. The latter, it was
suggested, might have been over-insured and the intentions might have
been to benefit him. But motive in most cases can be gathered from
action. And the wrongful and deliberate setting fire to the building
of another is an act from which it is legitimate to deduce an
intention to injure that other. Such a deduction is founded upon a
knowledge of human nature and of the ordinary course of human
affairs. The inference may be disproved by the wrongdoer; but unless
disproved it stands.”
In
R
v Mashanga
1923 AD 11, INNES CJ, affirmed the approach of the court in Kewelram
(supra)
in the following terms:
“Now
to constitute the crime of malicious injury to property, malice is a
necessary element. But by that is meant legal malice, not necessarily
personal spite against the owner of the injured property. All that is
necessary in our law to the constitution of the crime is an
intentional wrongful injury to the property of another. Upon proof of
the wrongful intention the Court will presume malice; that
presumption may be rebutted, but until displaced it stands. As Mr
Fischer said, the matter has really been concluded by our decision in
Rex v Kewelram (1922, AD 213). It was there laid down that to support
an indictment it was not necessary for the Crown to establish the
existence of a specific intention to injure the owner of the
property, but that such intention could be inferred from the
realisation of the fact that the burning of stock in a building would
result in the burning of the building.”
The
evidence on the injuries observed on the body of the deceased paints
a horrific picture of the agony that the appellant put the deceased
through.
The
deceased was aged 3.
She
was virtually a baby. She should not, by any stretch of the
imagination, have been considered an object of sexual desire.
She
walked from the homestead but returned lifeless, a mere hour later.
She was on the appellant's shoulder. She was bleeding from the nose
and had froth coming out of her mouth.
In
the absence of a pre-existing condition, the nose bleed was most
probably caused by the application of force to that part of her face
causing the nose to bleed.
The
nurse who admitted the deceased's body observed fresh bruises on
the right eye. There was also bruising on each side of the abdomen.
The grandmother observed swellings on both sides of her neck.
In
my view, the injuries point to the application of force around her
throat resulting in her frothing from the mouth.
Taken
together, these injuries suggest that the deceased was lying with her
face on the ground. In order for the appellant to perpetrate the rape
per anum
the deceased would have to be lying on her stomach.
Both
witnesses described bruising on the back. The open genitalia
which
had faeces confirms that she was raped and further that after
sodomising her at some point he perpetrated a frontal assault leaving
faeces in the genitalia.
From
the bruises and injuries observed on the body, it was the conclusion
of the pathologist that the deceased had been sexually abused both
per vaginum
and anum.
As a result of the sexual abuse there was a laceration in the rectum.
A laceration of this nature would cause bleeding which could be
fatal.
She
died as a result of the assault.
The
evidence on the sexual assault leads one to conclude that the
appellant intended to rape and assault the deceased. In order to give
effect to his intent, the appellant took her to the mountains against
the will of her mother. He subjected her to such a vicious sexual
assault that he tore her insides causing her to die from the injuries
inflicted from the assault.
Given
the age of the deceased and her body size, it can be said that the
death of the deceased was the appellant's aim and object.
He
could not give a reason why he wanted a three-year old juvenile to
accompany him to the bush to fetch firewood. When her mother
indicated her unwillingness for the child to accompany him he
threatened her with physical assault. He kept her in the bush for two
hours only to return with her lifeless body on his shoulder. He
callously laid her body in the kitchen hut where he proceeded to
prepare food for himself and eat it. He made no attempt to obtain
medical assistance for her, even from the child's own mother. He
then surreptitiously conveyed her to her grandmother's homestead
for burial during the night. He made no effort to advise the
grandmother of the child's passing.
It
is also common cause that he and Kudzai had previously taken the
deceased away from the grandmother's home without permission. The
grandmother was only able to locate her after two weeks.
A
wrongdoer is presumed to have intended the natural consequences of
his actions.
In
view of her age, her small body and the manner in which he
perpetrated the sexual assault on her, it is clear that the appellant
contemplated and foresaw that the deceased would sustain serious
injuries that would have irreparably and extensively damaged her
small undeveloped body.
It
must have been in his contemplation that her pubescent body could not
withstand such an assault and that serious harm would be occasioned
to her from the assault. As a consequence, he must be presumed to
have intended to cause her death.
The
only inference is that he abused her sexually and that he foresaw her
death from the assault.
Given
the proven facts, it is inevitable to conclude that in the eyes of
the law he intended to kill her and he in fact desired her death.
I
am satisfied, on these facts, that the appellant was properly
convicted of murder with an actual intent to kill the deceased.
The
appellant was charged and convicted in terms of section 47 of the
Criminal Law (Codification and Reform) Act [Chapter
9:23]
(the
“Criminal Code”).
That section, which has since been amended to accord with the
Constitution, provided as follows:
“47
Murder
(1)
Any person who causes the death of another person -
(a)
Intending to kill the other person; or
(b)
Realising that there is a real risk or possibility that his or her
conduct may cause death, and continues to engage in that conduct
despite the risk or possibility;
shall
be guilty of murder.
(2)
Subject to section 337 of the Criminal Procedure and Evidence Act
[Chapter
9:07],
a person convicted of murder shall be sentenced to death unless;
(a)
the convicted person is under the age of eighteen years at the time
of the commission of the crime; or
(b)
the court is of the opinion that there are extenuating circumstances;
in
which event the convicted person shall be liable to imprisonment for
life or any shorter period.”
On
a proper and literal construction, section 47(2) as it was prior to
the amendment, requires that a person convicted of murder be
sentenced to death in terms of section 337 of the Criminal Procedure
and Evidence Act [Chapter
9:07]
(the “CP&E Act”).
Therefore,
a court which convicts an accused person of murder must have regard
to the provisions of section 337 to pass a sentence that is in
accordance with the law.
In
turn, as at the date that the appellant was convicted and sentenced,
section 337 read in relevant part:
“337
Sentence of death for murder
Subject
to section three
hundred and thirty-eight,
the High Court —
(a)
shall pass sentence of death upon an offender convicted by it of
murder:
Provided
that, if the High Court is of the opinion that there are extenuating
circumstances or if the offender is a woman convicted of the murder
of her newly-born child, the court may impose -
(a)
a sentence of imprisonment for life; or
(b)
any sentence other than the death sentence or imprisonment for life,
if the court considers such a sentence appropriate in all the
circumstances of the case.”
In
casu,
having found the appellant guilty of murder with actual intent, the
trial court invited counsel for the defence and the State to address
it in relation to the question of sentence.
The
record reveals that counsel premised their addresses on the
provisions of section 48 of the Constitution of Zimbabwe Amendment
(No.20) 2013.
It
is common cause that both counsel related their respective addresses
to the question of whether or not the murder of which the appellant
had been convicted had been committed in aggravating circumstances.
Neither
made reference to section 47(2) of the Criminal Code or section 337
of the CP&E Act.
Consequently,
in passing sentence, the trial court invoked section 48(2) of the
Constitution.
As
prayed by the State counsel, the trial court exercised its discretion
under section 48(2) on the issue of aggravating circumstances. The
court was unable to find anything that would justify the imposition
of a sentence other than death.
It
imposed the death penalty upon the appellant.
At
the hearing of the appeal this court enquired from the legal
representative of the appellant and the State as to the
appropriateness of the sentence.
The
question bedevilling the court was whether or not a trial court can
impose a death sentence on a person convicted of murder with actual
intent without reference to section 337 of the CP&E Act.
Neither
counsel was in a position to assist.
We
are indebted to Mr Zhuwarara
who successfully applied to assist the court as an amicus
curia.
He filed detailed submissions on the question posed.
It
is not in dispute that section 337 constitutes part of the law of
this country.
Section
10 of the 6th
Schedule of our Constitution has specifically provided for the
continuation and efficacy of all laws in existence at the date of
promulgation of the Constitution.
It
seems to me that the trial court was aware that the provisions of
section 337 were in conflict and inconsistent with section 48 of the
Constitution. This section read as follows:
“2
Supremacy of Constitution
(1)
This Constitution is the supreme law of Zimbabwe and any law,
practice, custom or conduct inconsistent with it is invalid to the
extent of the inconsistency.
(2)
The obligations imposed by this Constitution are binding on every
person, natural or juristic, including the State and all executive,
legislative and judicial institutions and agencies of government at
every level, and must be fulfilled by them.
48
Right to life
(1)
Every person has the right to life.
(2)
A law may permit the death penalty to be imposed only on a person
convicted of murder committed in aggravating circumstances, and —
(a)
the law must permit the court a discretion whether or not to impose
the penalty;
(b)
the penalty may be carried out only in accordance with a final
judgment of a competent court;
(c)
the penalty must not be imposed on a person —
(i)
who was less than twenty-one years old when the offence was
committed; or
(ii)
who is more than seventy years old;
(d)
the penalty must not be imposed or carried out on a woman; and
(e)
the person sentenced must have a right to seek pardon or commutation
of the penalty from the President.
(3)
An Act of Parliament must protect the lives of unborn children, and
that Act must provide that pregnancy may be terminated only in
accordance with that law.”
The
Constitution is the supreme law in Zimbabwe land and all laws and
legislative instruments must be construed in such a way as to give
efficacy to the provisions of the Constitution.
The
Constitution requires that the death penalty may be imposed upon a
person convicted of murder committed under aggravating circumstances
in terms of a law. However,
per contra,
the CP&E Act provides for the death penalty unless there are
extenuating circumstances surrounding the commission of the offence.
This
clearly is in conflict with the provisions of section 48(2).
In
addition, there are a number of inconsistencies apparent in the
Constitution and section 337. These are the following:
The
Constitution provides that the court has a discretion as to whether
or to impose a death penalty, section 337 is peremptory in its terms,
in that a court which is unable to find factors of extenuation must
impose the death penalty.
The
Constitution provides that no court may impose a penalty of death
upon a woman convicted of murder whereas in terms of section 337 only
a pregnant woman is exempted from the imposition of the death
penalty.
It
is clear that section 47 of the Criminal Law Code and section 337 of
the CP&E Act are inconsistent with section 48(2).
When
regard is had to the provisions of section 2(2) of the Constitution a
court which convicts an accused person of murder can only sentence
such an accused person to death in terms of a law which provides for
a murder committed in aggravating circumstances.
It
is common cause that as at 30 January 2015 when the appellant was
sentenced no such law was in place.
Although
the trial court made no reference to section 337 it was correct in
accepting that in view of its inconsistency with section 48 of the
Constitution, section 337 was invalid and therefore could not be
given effect to.
The
trial court sought to rely on section 48(2) of the Constitution to
pass the sentence of death.
In
my view the court was wrong in simply ignoring the section, it should
have made mention of the offending provision and given its reasons as
to why it would not sentence the appellant in accordance with the
same.
The
court a
quo
however completely overlooked the section and went on to sentence the
appellant in terms of section 48(2) of the Constitution.
The
court was clearly in error as section 48 of the Constitution is not
an operative provision for purposes of sentencing. It does not
specify what sentence the court may pass upon a person convicted of
murder. It is a section which defines and sets outs out fundamental
rights of a person convicted of murder.
In
addition, and most fundamentally, section 48(2) requires that the
death penalty be provided for in a law permitting a court to pass
sentence for a murder committed in aggravating circumstances.
Therefore, it stands to reason that section 48 is not such law.
In
my view, it is an enabling provision for the promulgation of the
necessary law.
In
the absence of the contemplated law therefore the trial court could
not pass a sentence of death. To do so would be a violation of
section 48(2).
Parliament
has now complied with the provisions of section 48(2).
The
General Laws Amendment Act 3 of 2016 has made provision for the
amendment of section 47 of the Criminal Law Code.
Consequently,
in so far as the trial court ignored the provisions of section 377 of
the CP&E Act in its consideration of the appropriate sentence,
the sentence it passed was invalid. The sentence was passed outside
the law and cannot stand.
The
sentence therefore is set aside and the matter is hereby remitted to
the trial court for the same to consider sentence in terms of the
law.
Accordingly,
it is ordered as follows:
1.
The conviction of the appellant on a charge of murder with actual
intent is upheld.
2.
The appeal against sentence is allowed.
3.
The sentence of death is set aside and the matter is remitted to the
same court for consideration of and the passing of an appropriate
sentence in terms of the law.
GWAUNZA
JA:
I
agree
MAVANGIRA
AJA: I
agree
Muzvuzvu
& Mguni Law Chambers,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
