MATHONSI
JA:
This
is an automatic appeal against both conviction and sentence. The
appellant was convicted of murder with actual intent by the High
Court sitting on circuit at Gweru on 22 September 2014.
Upon
conviction, the penalty of death was imposed.
After
hearing argument from counsel this Court made the following order:
“It
is ordered that:
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence is allowed.
3.
The sentence of death imposed by the court a quo is set aside.
4.
The matter is remitted to the court a quo for consideration and
imposition of an appropriate sentence.”
The
court stated that the full reasons for the order would follow. These
are the reasons.
NON
INVOLVEMENT OF THE STATE
This
appeal was initially set down on 11 September 2018. The appeal could
not be heard on that date because the respondent had not filed heads
of argument and needed time to do so. Ms Fero, who appeared for the
respondent, requested a postponement to enable her to file heads of
argument. The court acceded to that request and issued the following
order:
“It
is ordered that:-
The
appeal is postponed sine die to allow the respondent to file heads of
argument following the late filing of the notice of appeal.”
I
must add that the notice of appeal had been filed only on 7 September
2018 giving the respondent little time to file heads of argument.
When
the appeal was again set down for hearing, the respondent still had
not filed heads of argument. Ms Fero again appeared for the
respondent and sought a further postponement of the appeal. She
admitted having been served with the notice of appeal in September
2018 and being timeously served with the notice of set down. She
however submitted that the matter had been allocated to someone else
at the office of the National Prosecuting Authority who did not file
heads of argument.
As
to why that officer had not appeared before the court to explain her
failure to act and why she was not making the application for a
postponement herself, Ms Fero did not give a satisfactory
explanation.
It
is clear that the office of the National Prosecuting Authority has
been tardy in its handling of the matter and has not given it the
attention that it deserves.
In
terms of Rule 52(3) of the Supreme Court Rules, 2018, where the
respondent is to be represented by a legal practitioner at the
hearing of the appeal, that legal practitioner shall file a document
setting out the heads of his or her argument together with a list of
authorities cited in support, within ten days of receipt of the
appellant's heads of argument.
Subrule
(5) of Rule 52 provides for an automatic bar against a failure to
file heads of argument timeously.
The
appellant's heads of argument were filed and served on the
respondent on 30 May 2018 but the respondent, even though represented
by counsel, did not file its own heads of argument up to the date of
the initial set down on 11 September 2018 on the pretext that the
notice of appeal had not been filed and served on time. This Court
gave the respondent an indulgence and postponed the matter sine die
to allow enough time for the settling of the heads of argument.
The
indulgence was spurned.
It
is the view of this Court that the respondent could not possibly
expect a further indulgence of another postponement. In fact, there
was nothing suggesting that the respondent was treating this Court
with the respect that it deserves.
While
it is the right of the prosecution in any criminal appeal, to defend
the conviction and indeed, the sentence of convicted persons, that
right should be exercised within the confines of the law and the four
corners of the rules of court.
The
court has always leaned in favour of according the National
Prosecuting Authority the opportunity to present its cases and to be
heard. In that regard they have always been indulged in the
discretion of the court. Unfortunately the leniency extended to that
office has been completely misunderstood. It is certainly not a
licence for treating the rules of court with disdain.
Indeed
there are no special rules governing the National Prosecuting
Authority. It is a party to proceedings just like any other litigant
and is required to abide by the rules.
Where
there has been a failure to comply or there has been a delay, a
reasonable and satisfactory explanation for failure to comply or to
act timeously must be rendered.
No
meaningful explanation for the failure to file heads of argument was
given, even after an indulgence had been extended to the respondent
on a previous occasion.
This
is a case in which the appellant was convicted and sentenced to death
on 22 September 2014. A capital sentence has been hovering over his
head for almost six years. It is completely unacceptable in the
circumstances for the respondent to behave as if it is business as
usual. It is for these reasons that this Court refused the
application for a further postponement and proceeded to hear the
appeal as unopposed.
FACTUAL
BACKGROUND
The
appellant was 27 years old when he was arrested and charged with the
crime of murder as defined in section 47(1) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (“the Criminal Law
Code”).
The
State contended that on 22 September 2013 the appellant proceeded to
Msoreka Mavengano Bushe's (“the deceased”) homestead in Village
10A Zviuma Chief Nhema, Shurugwi at night. He found the 85 year old
deceased having supper. The deceased lived alone. It was alleged that
the appellant attacked the deceased with a metal axe and metal rod
inflicting fatal injuries to the head, face and left leg from which
the deceased died instantly.
It
was the State's case that after the death of the deceased, the
appellant ransacked his house and took with him several items of
property which he hid in order to conceal the offence.
The
deceased's body was discovered in a pool of blood the following
morning by one Itayi Melusi who made a report leading to the arrest
of the appellant.
Following
his arrest, the appellant made indications to the police which led to
the recovery of a black suit, a metal rod, a big knife and a salt
shaker belonging to the deceased.
The
appellant also gave a warned and cautioned statement to the police
but the magistrate at Shurugwi refused to confirm the first statement
when it was taken to her for confirmation. This was after the
appellant had alleged that he had been assaulted by the police to
induce him to make a confession.
Subsequent
to that, the police officers investigating the matter booked the
appellant out of Hwahwa Remand Prison for purposes of recording a
second warned and cautioned statement from him. They took the
appellant to the same magistrate at Shurugwi Magistrates Court for
confirmation of the second statement. The magistrate confirmed the
statement as this time, the appellant did not raise a complaint
against the police.
At
the trial, the appellant pleaded not guilty to the charge.
The
State produced the appellant's second warned and cautioned
statement in terms of section 256(1) of the Criminal Procedure and
Evidence Act [Chapter 9:07], among other evidence.
It
also relied on the evidence of one Evia Matura, the Provincial
Magistrate who conducted the confirmation proceedings and Detective
Vumindaba Mpofu, the investigating officer, among other witnesses.
The
appellant's defence, although he had submitted two diametrically
different Defence Outlines, was that he had been assaulted by the
police forcing him to confess having killed the deceased and robbing
him of his property. He had also been assaulted to force him to make
indications which led to the recovery of property, some of which
belonged to the deceased.
He
was not involved in the murder of the deceased. He had only been
given a bag with clothes by Tulani Rukwe who had proceeded to the
deceased's homestead on the fateful night with Victor Nzombe. The
two had been panning for gold with the appellant at Dopota gold
mining area. He later sold some of the clothes given to him in his
village.
THE
COURT A QUO'S FINDINGS
The
court a quo found the State witnesses, particularly the investigating
officer, credible. It accepted the evidence of Vumindaba Mpofu in its
totality especially when relating to the recording of the confession
made by the appellant and the statement of indications, as “the
demeanour of (the) witness and the narration that he gave as well as
the manner in which he answered the questions” suggested
truthfulness.
On
the admissibility of the warned and cautioned statement, the court a
quo embraced the evidence of the Provincial Magistrate who confirmed
it as truthful without questioning how, the same court which had
refused to confirm an earlier confession, found nothing wrong with
the appellant being brought back to confirm a confession in respect
of the same matter. The remarks of the trial court in that regard are
pertinent:
“Nothing
much turns on her (Evia Matura) testimony and she appeared to the
court to be telling the truth. More so she is a judicial officer who
was not shown to have an interest in the matter. In fact she had
refused earlier on to confirm a statement that the accused person had
said he had given under duress. So the court believes that indeed
even when she did the confirmation for the second time she adhered to
the proper procedure.”
The
court a quo concluded that the appellant had failed to discharge the
onus placed on him by section 256(2) of the Criminal Procedure and
Evidence Act [Chapter 9:07] to show, on a balance of probabilities,
that the confirmed warned and cautioned statement was not made freely
and voluntarily. In the court a quo's view the statement was
properly confirmed.
Significantly,
the court a quo found that even were the confession and the statement
of indications found to be inadmissible, the appellant would not
escape conviction by reason of the deceased's property found in his
possession.
In
doing so, the court a quo found ample evidence that the appellant
committed the offence of murder in the course of a robbery. It
returned a verdict of guilty of murder with actual intent.
After
the verdict, the court a quo went on to enquire into the existence of
extenuating circumstances as would preclude the imposition of the
death penalty. After finding none the court a quo sentenced the
appellant to death.
The
appellant enjoyed an automatic right of appeal owing to the penalty
imposed.
GROUNDS
OF APPEAL
The
appellant raised three grounds of appeal in his appeal against both
conviction and sentence. They are:
“1.
The court a quo grossly misdirected itself in finding the appellant
guilty of murder based on a warned and cautioned statement which was
obtained through duress by the investigating officers. The court
failed to consider that a warned and cautioned statement obtained
through duress is inadmissible and cannot form the basis of a
conviction.
2.
The court a quo grossly misdirected itself in finding the appellant
guilty on the basis of circumstantial evidence which did not lead to
the inescapable conclusion that the appellant had committed the
crime. There was evidence from the appellant of where he got the
deceased person's items but the court a quo erroneously disregarded
such evidence.
3.
The court a quo grossly erred in considering the absence of
extenuating circumstances in passing the death penalty. The
constitution stipulates the sentence of death should be passed only
if the existence of aggravating circumstances is established and the
court failed to consider these circumstances.”
ISSUES
FOR DETERMINATION
This
appeal raises only two (2) issues for determination by the court,
namely:
1.
Whether the appellant was properly convicted; and
2.
Whether the sentence was proper in the circumstances.
WHETHER
THE APPELLENT WAS PROPERLY CONVICTED
This
is a case in which the State did not have any direct evidence of the
commission of the offence. It relied entirely on the confession of
the appellant and circumstantial evidence strewn all over the record.
For that reason, there was a pressing need for the trial court to
carefully and meticulously test the evidence before arriving at a
verdict of guilt or otherwise.
It
is common cause that the appellant made a statement to the police on
30 October 2013 in which he admitted having planned to kill the
deceased who was rumoured as having sold a beast and had money. He
confessed having executed his plan on the evening of 22 September
2013 using an axe with a metal handle while in the company of an
accomplice who was armed with a metal rod. He also admitted having
robbed the deceased of his belongings.
It
is however the reliability of that confession which presents some
legal challenges given the circumstances under which the statement
was recorded and confirmed by the Provincial Magistrate at Shurugwi.
It
is common cause that the appellant initially gave a statement to the
police under caution, which, upon being taken before the Provincial
Magistrate for confirmation in terms of section 113 of the Criminal
Procedure and Evidence Act [Chapter 9:07] was not confirmed after the
appellant alleged duress.
It
is also common cause that after that failed attempt at confirmation,
the investigating officer who had recorded the statement, booked the
appellant from remand prison. He set about recording a second
statement from the appellant, which statement was again witnessed by
the same police officer who had witnessed the unconfirmed statement.
The statement was taken to the same Provincial Magistrate for
confirmation.
On
the second occasion, the appellant did not raise a complaint and the
second statement was confirmed.
Once
the statement was confirmed by a magistrate the provisions of section
256(2) of the Act set in. It provides:
“A
confession or statement confirmed in terms of subsection (3) of
section one hundred and thirteen shall be received in evidence before
any court upon its mere production by the prosecutor without any
further proof. Provided that the confession or statement shall not be
used as evidence against the accused if he proves that the statement
was not made by him or was not made freely and voluntarily without
him having been unduly influenced thereto, and if, after the accused
has presented his defence to the indictment, summons or charge, the
prosecutor considers it necessary to adduce further evidence in
relation to the making of such confession or statement, he may
re-open his case for that purpose.”
The
above provision places the onus on an accused person whose statement
has been confirmed in terms of section 113 to prove that it was not
made freely and voluntarily.
The
statement itself, once confirmed, is admissible in terms of section
256(1) upon its mere production by the prosecution.
It
is however the confirmation itself which was questionable.
It
is trite that a statement induced by duress in the form of torture,
physical beating or mistreatment of an accused person would not be
made freely and voluntarily.
An
accused person should not be threatened, harassed or even offered
some benefit if he or she makes a confessionary statement. A
statement made under those circumstances is clearly unreliable and,
for that reason, is inadmissible as evidence.
This
court has, in the past, gone to the extent of holding that even the
denial of access to legal representation to an accused person renders
a statement made thereafter inadmissible. See S v Woods & Ors
1993 (2) ZLR 258 (S).
The
procedure for confirming extra-curial statements is designed to
curtail proceedings in a criminal trial by reducing prospects of
trials – within – trials. The confirmation proceedings however
should not be a mere formality because the statement, once confirmed,
can be admitted in evidence at the trial on mere production. It is
therefore imperative that the presiding magistrate, not only adheres
strictly to the procedure for confirmation, but also thoroughly
investigates the freeness and voluntariness of the statement.
Where
possible an accused person must be made to identify those he or she
accuses of applying undue pressure on him or her to make a statement.
Where an accused person has identified them resulting in the
magistrate refusing to confirm the statement, it certainly does not
make sense for the culprits to be allowed to return to the same
accused person and record another statement and have it confirmed.
Indeed,
in confirmation proceedings it is critical that the presiding
magistrate be on guard and closely look out for suspicious factors
tending to point to undue influence having been brought to bear on an
accused person to make a statement or confession. These include the
lengthy delay in recording the statement or in bringing it to court
for confirmation.
Confirmation
proceedings must always be held in camera in order to allow an
accused person the freedom to raise any complaints against his or her
police handlers. The investigating officer and his or her team should
never be allowed anywhere near the court room where the proceedings
are being conducted. Their presence tends to intimidate the accused
person preventing him or her from reporting any mistreatment to the
magistrate.
In
the present case it may well be, as attested by the presiding
magistrate, that the accused person did not raise any complaints
against the police and that he admitted having made the statement
freely and voluntarily.
However,
alarm bells should have chimed in the mind of the magistrate the
moment she saw the same accused person whose confession she had
refused to confirm a few days earlier, being brought back for
confirmation of another confession in respect of the same offence.
Having
said that, it occurs to me that it is wholly inappropriate for the
police, who would have had the confirmation of a statement recorded
from an accused person rejected by a magistrate, to go back and seek
to record another statement and to have it confirmed.
It
renders the whole exercise a farce.
To
my mind, once confirmation of the recorded statement has been
rejected, the investigators must live with that outcome. The matter
should end there. After all, the prosecution is not precluded from
placing reliance on the statement at the trial. Only that it bears
the onus of showing that it was made freely and voluntarily.
In
my view, the court a quo fell into grave error when it accepted and
relied on the confession of the appellant which was confirmed in such
circumstances. This is more so regard being had that the appellant
had proffered an explanation for the two statements and why he had
not objected to the confirmation of the second one. He said that he
had been assaulted to induce a confession and that when the statement
was taken for confirmation, the investigating officer and his team he
accused of assaulting him were allowed into the court room. They had
threatened that if he prevented confirmation they would assault him
further.
It
is trite that where an accused person has given an explanation, the
court is not at liberty to reject it unless satisfied, not only that
the explanation is improbable, but that it is, beyond a reasonable
doubt, false. See R v Difford 1973 AD 370 at 373; S v Mapfumo &
Ors 1983 (1) ZLR 250.
In
my view, reasonable doubt existed as to the reliability of the
appellant's confession, it being common cause that the same
officers who had recorded and witnessed the unconfirmed statement
undertook the same exercise for the second time.
It
is important to note, that notwithstanding, the confession was not
the only evidence linking the appellant to the commission of the
offence.
I
have said that the evidence of the State was circumstantial.
The
proper use of circumstantial evidence can be regarded as settled in
our jurisdiction. There are two cardinal rules of logic governing the
use of such evidence in criminal proceedings. They are that:
1.
The inference sought to be drawn must be consistent with all the
proved facts; and
2.
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn.
See
R v Blom 1939 AD 188 at 202-203 (quoted with approval in Moyo v The
State SC65/13).
The
evidence is essentially that the appellant was found in possession of
property belonging to the deceased after his arrest. In fact, it is
him who made indications leading to the recovery of the property in
question. Exhibit 6 is a black suit belonging to the deceased. The
jacket was recovered on top of a mountain while the trousers was
found at the appellant's home in a room used by the appellant.
The
appellant also led the investigating team to a cave where a metal
rod, exhibit 7, and a big knife, exhibit 9, were recovered. The knife
was identified by Shepherd Bushe as belonging to the deceased.
Also
recovered following the appellant's indications at another cave at
Boman Kopje was the deceased's salt shaker.
It
is true that the appellant tried to challenge the admissibility of
the indications which he made, stating that the indications were
conducted the same day that he made the statement to the police under
duress. According to him those indications were inadmissible by
reason that he had been assaulted.
In
my view, the challenge to the indications was of no moment at all.
The
trial court did not have to rule on their admissibility by reason of
the provisions of section 258(2). It reads:
“It
shall be lawful to admit evidence that anything was pointed out by
the person under trial or that any fact or thing was discovered in
consequence of information given by such person notwithstanding that
such pointing out or information forms part of a confession or
statement which by law is not admissible against him on such trial.”
This
provision was applied in Moyo v The State (supra) where the court
stated:
“The
appellant pointed to the place where the axe was buried so deeply
that some digging was necessary to retrieve it. He could not have
done this unless he had knowledge of some fact relating to the item
concerned. The appellant then led the police to two other locations
from where other items belonging to the deceased were retrieved.
It
can, in our view, and by parity of reasoning, be assumed that the
appellant had knowledge of some facts relating to those items. The
locations from which the items were recovered were so spaced as to
reasonably suggest a deliberate effort to conceal and prevent their
random discovery.
All
this leads to the inevitable conclusion that the appellant buried the
items in the places that he indicated. The items having been
identified as belonging to the deceased, all reasonable doubt was, in
our view, removed that the appellant had caused the deceased's
death.”
The
same reasoning is applicable to the present case.
Even
if the indications were not admissible, the evidence of the recovery
of the items of property belonging to the deceased, could lawfully be
admitted.
Indeed,
when a person points out an item, his or her act proves that he or
she had knowledge of some fact relating to the thing. See S v Nkomo
1989 (3) ZLR 117 (S) at 125D.
The
fact that the deceased's property was pointed by the appellant
means he was in possession of it at locations of his own choosing.
His possession triggered the application of section 123 of the
Criminal Law Code which provides:
“(1)
Subject to subsection (2) where a person is found in possession of
property that has recently been stolen and the circumstances of the
person's possession are such that he or she may reasonably be
expected to give an explanation for his or possession, a court may
infer that the person is guilty of either theft of the property or
stock theft, or of receiving it knowing it to have been stolen
whichever crime is more appropriate on the evidence, if the person –
(a)
cannot explain his or her possession; or
(b)
gives an explanation of his possession which is false or
unreasonable.
(2)
A court shall not draw the inference referred to in subsection (1)
unless the circumstances of the person's possession of the property
are such that, in the absence of an explanation from him or her, the
only reasonable inference is that he or she is guilty of theft, stock
theft or receiving stolen property knowing it to have been stolen, as
the case may be.”
Clearly
possession placed the onus on the appellant to explain his
possession.
His
explanation is that he was given a bag full of clothes by a
colleague. The explanation is not only improbable, it is demonstrably
false.
The
colleague in question was not located and was not shown to exist.
The
reason for the colleague's generosity was not given.
All
the proved facts exclude every reasonable inference from them other
than that he stole the property from the deceased's home.
Unfortunately, in this case it is not only theft but also murder
because the deceased was murdered before his property was taken.
The
circumstantial evidence led proved that it is the appellant who
killed the deceased and stole his property. He was properly found
guilty. In my view, this having been a murder committed in the course
of a robbery, the court a quo correctly found the existence of actual
intention. That finding is supported by a number of factors including
the age of the deceased and the injuries he sustained.
The
injuries included a deep cut on the skull and lower lips suggesting
that blows were directed to the most vulnerable part of the human
body, the head.
The
test for actual intention is that:
(a)
Either that the accused desired to bring about the death of the
victim and succeeded in his or her purpose; or
(b)
While pursuing another objective the accused foresees the death of
the victim as a substantially certain result of that activity and
proceeds regardless.
See
S v Mugwanda 2002 (1) ZLR 574 (S) at 581 D-E.
The
appellant was properly convicted because the test was satisfied.
Regarding
sentence, that need not detain us here because it was settled by this
Court in Mutero v The State SC28/17.
The
court a quo inquired into the existence of extenuating circumstances.
When it found none, it imposed capital punishment. In doing so the
court a quo proceeded in terms of section 337 of the Criminal
Procedure and Evidence Act [Chapter 9:07] without regard to section
48(2) of the Constitution which had come into effect in 2013 prior to
the trial of the appellant.
In
terms of section 48 of the Constitution, a law may permit the death
penalty to be imposed only on a person convicted of murder committed
in aggravating circumstances. The law must permit the court a
discretion whether to impose the death penalty or not.
In
the Mutero case supra, this Court dealt with the sentencing of an
accused person convicted of murder with actual intent before the
alignment of section 337 of the Criminal Procedure and Evidence Act
to the Constitution and found that the section as it stood then was
inconsistent with section 48(2) of the Constitution. This is because
section 337 provided for the death penalty where extenuating
circumstances were not found. On the other hand, section 48(2) of the
Constitution, which overrides any other law inconsistent with it,
allows the imposition of the death penalty only where murder is
committed in aggravating circumstances.
Even
then, the court has a discretion to impose it or not to.
The
following remarks of GOWORA JA in that case are apposite:
“…
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)” (The underlining is for emphasis).
It
was not until the promulgation of Act No. 3 of 2016 in June 2016 that
section 47 of the Criminal Law Code was amended to provide for the
imposition of the death penalty where murder is committed in
aggravating circumstances. It is now contained in subsection (2) of
section 47.
This
can only mean that it was not only incompetent for the trial court to
inquire into the existence or otherwise of extenuating circumstance,
but also to impose the death penalty. No law existed then regulating
the imposition of such a sentence.
The
sentence cannot stand. It has to be vacated for that reason.
It
is for these reasons that the court issued the order set out above.
MAKARAU
JA: I agree
MAKONI
JA: I agree
Wintertons,
appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
