Bail
Pending Appeal
CHITAPI
J:
The
applicants apply for bail pending appeal against both conviction and
sentence. The applicants were convicted of “murder with
constructive intention” as defined in section 47(1)(b) of the
Criminal Law Codification and Reform Act [Chapter
9:23]
by MWAYERA
J sitting
with Assessors on 31 May 2017 in the High Court, Harare.
The
conviction of the appellants followed a trial which commenced in
2012. The learned judge in her judgment decried the delay in the
finalisation of the trial which was caused by a variety of reasons
which included difficulties of finding accused persons each time a
date was set as they were on bail and the trial would be postponed
sine
die
now and then. The judge for her part was not readily available as
she had been reassigned from the criminal division to another
division of the court.
I
have deliberately alluded to the question of the delayed finalisation
of the trial in order to keep in mind that during the 5 years that
the trial would slowly grind to its finalisation, the applicants were
out of custody and none of them absconded the court's jurisdiction.
The
brief facts of the matter were that the applicants including another
who passed on during the course of the trial unlawfully assaulted the
deceased, Aleck Bongo Loore and arrested him on allegations of having
committed a robbery at Impala Downs Farm. The applicants were one or
more or all of them employees at the said farm. The accused were
investigating the robbery and seeking to arrest the perpetrators as
well as recovering proceeds of the robbery. The accused persons held
the deceased captive from the night of 23 March 2009 and surrendered
the deceased to the police on the following day around 10:00am.
The
learned judge in a 12-paged typed judgment believed State witnesses
whose evidence corroborated each other that the deceased was
subjected to a protracted and vicious assault by all the applicants
using their booted feet, baton sticks and switches. The applicants
wore safety shoes and assaulted the deceased indiscriminately all
over the body.
Applicant
Number 4 Stanley Chitenda was a member of the police special
constabulary and he admitted to having assaulted the deceased under
the feet.
The
learned judge accepted the further evidence of State witnesses that
the applicants, all other of them trampled on the deceased as he lay
on the ground injured.
The
learned judge acknowledged slight variations in the description of
the nature of the assaults perpetrated by the applicants. The
variations pertained to matters of detail which were immaterial.
The
assault perpetrated on the deceased was serious. He was taken to the
police station by the applicants in a vehicle and from there to the
hospital. The deceased could hardly stand or walk on his own. The
deceased's body was swollen including his face and he could hardly
open his eyes. He could not talk. The deceased fell down on the floor
in the charge office as he could not support himself.
There
was a suggestion that the deceased hit against the pillar at the
charge office. Whether or not he in fact did so before falling to the
floor would be immaterial because the deceased's inability to walk
or stand on his own was on account of his condition which was not
self-induced but a result of the assault perpetrated upon him by the
applicants.
The
deceased was pronounced dead on arrival at the hospital. The evidence
of the doctor corroborated the State witness evidence that force had
been applied to the body of the deceased. The learned judge detailed
the injuries found by the doctor upon the examination of the remains
of the deceased. The injuries were observed
inter alia
on the neck. The neck was fractured. The doctor's evidence as the
learned judge observed was not controverted. The learned judge
dismissed the applicants' contentions that in the absence of an
internal examination having been conducted, the doctor's evidence
could not be given evidential value.
Indeed
where an assault results in a broken neck and the victim dies; what
other conclusion can be reached other than that the assault resulted
in the death of the victim?
There
was no misdirection on the part of the learned judge in accepting the
doctor's evidence as to what injuries the doctor observed and the
doctor's conclusion as to the cause of the deceased's death.
The
learned magistrate convicted the applicants on the basis of their
having acted in common purpose.
The
learned judge was not misdirected in articulating and applying the
doctrine of common purpose and in convicting the applicants on the
said basis. The applicants admitted engaging in the assault upon the
deceased but minimized their degrees of participation and
involvement.
The
doctrine of common purpose seeks to deal with this very legal
problem. It admits that in gang actions, each member cannot act in
the same manner as the other one. The degrees of participation in the
absence of dissociation are not material.
The
learned judge correctly applied the doctrine of common purpose to the
facts of the matter.
I
have considered the applicants' grounds of appeal. The applicants
seek to argue that they were acting under the influence of marijuana
which affected their mental composure to such extent as to vitiate
their ability to form an intention to commit the crime.
This
issue was not advanced as a substantive defence by the accused.
The
proof of voluntary intoxication is a burden imposed upon an accused
who advances such defence as clearly set out in section 222 of the
Criminal Law (Codification & Reform) Act.
The
applicants failed to discharge the onus to prove voluntary
intoxication leading to an inability to form the requisite intention
for the commission of the offence. The learned judge made a finding
that the applicants only sought to minimize their degrees of
participation. This is inconsistent with the conduct of a person who
cannot explain his conduct because of intoxication. This ground of
appeal is ingenious but a red herring or spanner thrown in the works
to confuse the clear factual scenario surrounding the commission of
the offence by the applicants.
The
applicants also argue that the trial court wrongly applied the
doctrine of common purpose on the basis of “dolus
eventualis”
which is not part of our law.
Apart
from the submission being hair splitting, the ground of appeal lacks
merit in as much as the applicant's aver that the court a
quo
treated foresight as an inevitable yardstick of common purpose. The
applicants further aver that the trial court failed to enquire at
what point the applicants foresaw the possibility of the deceased
dying and made a conscious decision to continue in the harmful
activity.
The
applicants clearly did not acquaint themselves with the provisions of
sections 196A-200 of the Criminal Law (Codification & Reform) Act
when formulating this ground of appeal.
The
provisions of the said sections read together are clear that the
doctrine of common purpose is very much part of our law and was
correctly applied by the trial judge who was aided by decided cases
in the superior court as quoted in her judgment.
The
ground of appeal respecting an attack on the findings as to the cause
of death has been dealt with. It lacks merit. The applicants
viciously assaulted the deceased and the chain of causation was
clearly established.
As
against sentence, the applicants aver that given the trial courts
verdict of murder predicated on constructive intent, the sentence of
incarceration was not called for or if it was, then it was too long.
A
reading of the reasons for sentence does not reveal any misdirection
by the judge in assessing sentence. In the absence of a misdirection
of a material nature, the Appeal Court will not interfere with the
sentence since it is a settled principle of law that sentencing is
pre-eminently a matter for the discretion of the trial court; see S
v
Maglas
2001
(1) SACR 469 (SCA); S
v
Pillay
1977
(4) SA 531 (A); S
v
Gono
2000
(2) ZLR 63 (SC).
In
my judgment there are no prospects of prospects of success against
conviction or sentence in this case.
The
applicants in terms of the provisions of section 115(c)[2](b) of the
Criminal Procedure & Evidence Act [Chapter
7:06]
bear the onus to prove on a balance of probabilities that the
interests of justice will be served by their admission to bail
following their conviction.
The
applicants perpetrated a vicious and prolonged assault upon the
deceased whom they held hostage for more than 10 hours. Despite the
deceased having suffered serious injury and helplessly lying on the
ground, with the body and face swollen and unable to talk, the
applicants did nothing to assist him. They were intent on causing
harm to the deceased. They used weapons and their booted feet. The
injuries suffered by the deceased were serious and led to the
deceased's death.
The
trial judge justifiably found that the deceased had been subjected to
torture and inhuman treatment. The applicants perpetrated a gang
assault. The trial judge described the applicants as having engaged
in “a rampage” in a merciless manner.
The
trial judge treated the court's finding of murder with constructive
intention as a mitigatory circumstance amongst other factors. She
took into account the mitigating factors advanced on behalf of the
applicants and balanced them against the aggravatory circumstances
and exercised her discretion to pass what she considered an
appropriate sentence taking into further account the delay of 8 years
since the commission of the offence to the date of sentence.
In
all the circumstances I am not persuaded that the applicants have
discharged the onus to prove on a balance of probabilities that the
interests of justice will be served by their release on bail. Their
prospects of success on appeal are virtually nil and in the result, I
determine the applicant as follows:
That
the application for bail pending appeal be and is hereby dismissed.
Coghlan
Welsh & Guest,
applicants' legal practitioners
National
Prosecuting Authority,
State's legal practitioners
