MAKARAU
JA: The
appellant and another who is not a party to this appeal, appeared
before the High Court sitting at Harare, charged with one count of
murder.
After
a contested trial, they were found guilty of murder with actual
intent and were sentenced each to 25 years imprisonment.
It
was the finding of the court a
quo
that on 11 March 2011, they had unlawfully and intentionally caused
the death of one Alneshto Bayeta by pushing him down a steep slope
into Marongora Game Park which is infested with wild animals.
This
is an appeal against both the conviction and the sentence.
Background
facts
The
appellant then aged 20, and his co-accused, not much older, were
working in Chirundu, digging trenches for a telecommunications
corporation. When the contract ended, the two survived on odd jobs
for some time thereafter. They soon ran out of money and planned to
steal a vehicle.
On
11 March 2011, they approached the deceased who was working as a taxi
driver, driving a vehicle belonging to one Leonard Mhundwa, and
purported to hire the vehicle to Chirundu Heights. This was around
9.00p.m.
On
the way to Chirundu Heights, they robbed the deceased of the vehicle
and tied him up before placing him in the back of the vehicle. They
then drove along the Harare-Chirundu Road and at a certain spot where
the Marongora Game Park slopes steeply from the road, stopped the
vehicle and there left the deceased.
When
the deceased did not return with the vehicle at the appointed time,
Leonard Mhundwa, the owner of the vehicle, lodged a report with
the police. Investigations led to the arrest of the appellant and his
co-accused who were found in possession of the motor vehicle.
After
the arrest of the appellant and his co-accused, a search for the body
of the deceased was conducted around the spot at which the appellant
and his co-accused had left the deceased. The search was conducted
with the assistance of armed Rangers from the Department of Parks and
Wildlife who know the area to be infested with wild animals.
Some
20 metres down the slope, a spoor showing that something had been
dragged along was observed going down the slope. Along the spoor,
torn and blood-stained clothes and sandals belonging to the deceased
were recovered.
The
body of the deceased was not.
Presuming
the death of the deceased at the time of the trial as the only
reasonable inference that could be drawn from the facts, the court a
quo
found the appellant and his co-accused guilty of murder and sentenced
them as stated above.
The
appeal
Aggrieved
by the conviction and the sentence, the appellant noted this appeal
raising five grounds of appeal.
In
the first three grounds, he challenged the admissibility into
evidence of a warned and cautioned statement that he made to the
police upon his arrest.
It
was his argument that the court a
quo
erred in admitting the statement into evidence in the face of clear
evidence that he had not made the statement but that he was given the
statement by the police to sign.
He
further argued that the statement was irregular as it was “re-taken”
on the orders of the confirming court after that court had declined
to confirm the first statement.
In
his view, apart from the confession in the statement, there was no
evidence implicating him in the commission of the crime.
As
against the conviction proper, the appellant challenged the
sufficiency of the evidence against him arguing that the court a
quo
drew improper inferences that he had committed the crime. Finally he
argued that the sentence imposed upon him was severe and induced a
sense of shock.
From
the above grounds, three issues arise for determination in this
appeal. These are;
(i)
firstly, whether the appellant's warned and cautioned statement was
correctly admitted into evidence;
(ii)
secondly, whether the appellant was properly convicted of murder; and
(iii)
finally, whether the sentence imposed on the appellant is severe and
induces a sense of shock.
I
deal with each of the issues below.
Whether
the confirmed warned and cautioned statement by the appellant was
admissible evidence
The
appellant and his co accused were arrested on 1 April 2011. Four days
later, on 5 April 2011, the investigating officer recorded a
statement from the appellant after duly warning and cautioning him on
his rights.
On
12 April 2011, the appellant was taken before a magistrate for the
confirmation of the statement. He successfully challenged the
confirmation of the statement on the basis that the statement was not
his and that he had not made it voluntarily.
The
confirming magistrate correctly declined to confirm the statement.
However,
without citing any law for his decision, the magistrate thereafter
ordered the appellant and the investigating officer to record a
second statement.
The
second statement was recorded the following day and was confirmed on
the same date.
In
challenging the second statement during the trial a
quo,
the appellant alleged that he had been threatened by the
investigating officer with assault if the second statement was once
again not confirmed. He thus did not inform the confirming magistrate
that the statement was not his but that it was merely presented to
him for signing.
It
appears that the court a
quo
was not quite clear on the steps to take in dealing with the
challenge.
The
admissibility of the statement was challenged in the defence outline
and orally in court when the prosecution tendered the statement with
the other exhibits at the commencement of the trial.
In
a terse but correct ruling, the court a
quo
provisionally admitted the statement into evidence with the other
exhibits and placed an onus on the appellant to rebut the
admissibility of the statement.
The
court was correct in provisionally admitting the statement into
evidence as on its face, there was nothing irregular.
During
the state case, the investigating officer gave evidence on how he had
recorded the statements from the appellant and during his
evidence-in-chief, the appellant in turn gave evidence on how the
statement was taken. He maintained his stance that the statement was
not his as certain portions of it were insertions by the police.
In
the main judgment, the court a
quo
held that the appellant, through his counsel, had withdrawn his
objection to the admission of the statement into evidence.
This
was contrary to the evidence on record.
And
to confirm the uncertainty that the court a
quo
appears to have been operating under regarding what to do with the
challenge to the statements, it initially held that it was
unnecessary for it to establish whether or not the second statement
had been voluntarily made by the appellant as the appellant had
withdrawn his objection to the admission of the statement.
Moments
later it observed that:
“Although
the warned and cautioned statements were produced by consent after
the accused had withdrawn their objections, it is in my view
necessary to deal with the accused's evidence of the alleged duress
because of the continued reference to the statements by the accused
persons. Mr
Mushonga
submitted that the accused were not challenging the confirmation of
the statements per
se
but the decision by the magistrate to confirm a new set of
statements.”
The
court then proceeded to find that the appellant had not been unduly
influenced in making the statement.
The
law on the admissibility of confirmed statements is codified. It is
settled.
Section
256(2) of the Criminal Evidence Act [Chapter
9:07]
provides that a confession or statement made by an accused person and
confirmed before a magistrate following the procedures laid down in
s113(3) of the Act is admissible in evidence before any court upon
its mere production by the prosecutor without further proof.
However,
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 his having been unduly
influenced thereto.
In
a long line of decided cases, the steps that a court must take where
an accused person challenges a confirmed warned and cautioned
statement is settled. It is this:
Where
the accused raises a potentially sustainable challenge to the
propriety of the confirmation proceedings, the court is obliged to
determine the validity of that challenge as a separate issue of fact.
The
onus
is on the State to prove the absence of any irregularity.
If
the State discharges the onus,
the statement is provisionally admissible and the onus shifts to the
accused to rebut the presumption that the statement is admissible.
The
onus
of proof on the accused is to prove on a balance of probabilities
that the statements are inadmissible.
If
the accused's challenge is upheld, the onus
remains
on the State to prove beyond a reasonable doubt that the accused made
the statement and that he made it freely and voluntarily. (See S
v Woods
1993 (2) ZLR 258 (SC); S
v Slatter and Others
1983 (2) ZLR 144; S
v Manukwa and Others
1982 ZLR 30 (SC); and S
v Gwaze & Anor
1978 RLR 13 at 18D-H.)).
Against
the yardstick set by the above authorities, the court a
quo
erred in many respects which I will not fully go into.
Primarily
as this was its ratio
decidendi,
the court a
quo
erred in holding that the appellant had withdrawn his challenge to
the statement.
The
record indicates that the appellant consistently denied having made
the statement which he alleged was a confession to the offence.
The
court a
quo
was aware that right up to the end the appellant challenged the
statement attributed to him. He thus “continued to make reference”
to the irregularity of the statements throughout the trial as
rightfully observed by the court a
quo
in its judgment.
In
the absence of consent to the admission of the statement, the court a
quo
had to make a finding of fact on whether or not the statement was
admissible evidence.
This
it did not do.
I
must make the point that contrary to the finding by the court a
quo
that the confirming magistrate did not err in directing the police to
record a statement from the appellant afresh, the recording of the
second statement from the appellant was irregular and must be set
aside.
The
court a
quo
was of the view that since the appellant had not advanced any law
that precluded the recording of the statements afresh, the order by
the magistrate was proper.
Such
a law is easy to find and ought to have presented itself to the court
a
quo.
The
recording of extra curial statements from the accused is part of the
investigation of the alleged crime. It is an exercise that falls
wholly within the domain and discretion of the police. They and not
the court, elect whether or not to record a statement from the
accused.
In
our legal system which is adversarial and the magistrate or judge is
a neutral umpire, the magistrate or judge has no role or place in the
investigation of matters that come before the court. Therefore, he or
she cannot direct the investigation of the alleged crime at any
stage.
It
matters not that he or she will not tell the accused person on what
to say in the statement as was contended by the court a
quo.
The bottom line is that the court has no power whatsoever to direct
the police to record a statement from the accused person at any stage
of the investigations or of the trial.
It
is thus overreaching of grave proportions for confirming magistrates
to direct the police to record second statements from accused persons
after declining to confirm the first statement. Even if the statement
that is eventually recorded from the accused is exculpatory, the
bottom line is that a directive by the court to the police to record
a statement from the accused is grossly irregular and so is the
statement that is recorded pursuant to such a directive.
I
note in passing and for the benefit of the Chief Magistrate that the
directive to the police by the confirming magistrate in
casu
appears
similar to one that was issued by the confirming magistrate in
Mangoma
v S
SC36/20 in which this Court also set aside the statement.
The
police may feel obliged to comply with such directives which not only
have no basis in law but may violate the rights of an accused person
to a fair trial.
I
do not think that it is necessary to burden this judgment with a
discussion on whether or not there is a law that precludes the police
from recording a second set of statements from an accused person
after the confirmation of the first has been declined.
It
however presents itself clearly to me that the recording of a
statement from an accused person by the police, whether first or
subsequent, at the instance of and in fulfilment of a directive of
the court is grossly irregular.
It
is therefore my finding that the court a
quo
erred in admitting into evidence the statement by the appellant on
the basis that it was adduced by consent.
There
was no such consent.
Had
the court a
quo
followed the approach laid out in the authorities cited above, it
would have found, as I do, that the recording of the statement was
irregular as it was at the instance of the court.
The
confirmed statement by the appellant dated 13 March 2011 must be
struck off the record and any reference to its contents be expunged
from the evidence.
The
finding that I make above must apply with equal force to the
statement made by the appellant's co- accused on the same date.
This is so notwithstanding that he is not a party to this appeal. His
statement was recorded in similar irregular circumstances.
I
now turn to the second issue.
This
is whether, after expunging from the record the evidence that was in
the statements by the appellant and his co-accused, there remains
sufficient evidence implicating the appellant in the murder of the
deceased.
Whether
the appellant was properly convicted of murder
The
appellant and his co accused were charged with murder as defined in
s47(1) of the Criminal Law (Codification and Reform) Act, [Chapter
9:23].
The section defines murder in the following terms:
“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.”
Thus,
under the section, it is not necessary, as was the position under the
common law, to find the accused guilty of murder with either actual
intent or with constructive intent. Put differently, it is not
necessary under the Code to specify that the accused has been
convicted under 47(1)(a) or (b).
Killing
or causing the death of another person with either of the two
intentions is murder as defined by the section.
It
further appears to me that the distinction between a conviction of
murder with actual intent and murder with constructive intent, which
under the common law greatly influenced the court in assessing
sentence is no longer as significant or material as it was.
The
sentence to be imposed for murder, committed with the intent
specified in s47(1)(a) or (b), has also been codified as I shall show
below.
In
framing his fourth ground of appeal, which gives rise to the issue
under discussion, the appellant had this to say:
“4.
The court erred in adopting an armchair approach in adopting and
applying the circumstantial evidence doctrine and make
unsubstantiated inferences which are not supported by evidence that
the appellant killed the now deceased. The appellant had no intention
to kill or to cause whatever harm to the now deceased. The now
deceased drop off (sic)
alive and unharmed at Marogoro (G)ame (P)ark after the boom gate.”
I
temper down my criticism of the inelegant manner in which the ground
was framed in recognition of the fact that the appellant noted this
appeal in person and counsel took over the matter at a later stage.
Before
the hearing of the appeal, counsel could however have amended the
ground to make it conform to the rules of this Court in terms of
clarity and precision.
Nothing
however turns on this.
I
understood the ground to be an attack on the finding a
quo
that the appellant and his co accused had killed the deceased with
actual intent.
During
the hearing of the appeal, counsel for the appellant made two
concessions which have a direct bearing on the second issue in this
appeal.
(i)
Firstly, he conceded that the court a
quo
properly found, on the evidence that was before it, that
notwithstanding that his remains were never found, Alneshto Bayeta
was dead at the time of the trial.
(ii)
Secondly, he conceded that the only reasonable inference that could
be drawn from the facts of this appeal is that the deceased died
after being left by the appellant and his co-accused in the game
park.
He
thus conceded that the deceased died at the hands of the appellant
and his co- accused. He however urged us to find the appellant guilty
of murder with constructive intent at most or guilty of culpable
homicide, instead of guilty of murder with actual intent as was found
by the court a
quo.
Both
concessions were properly made.
The
facts that are common cause in this appeal and which I captured in
the background to this appeal above, come largely from the appellant
and his co- accused.
In
explaining their possession of Leonard Mhundwa's motor vehicle, the
appellant and his co–accused gave the only account that is before
the court of what happened from the time they purported to hire the
deceased's vehicle in Chirundu to the point where they left him 42
kilometres away on the Harare-Chirundu Road in the middle of the game
park.
It
is common cause that when they hired him, Alneshto Bayeta was alive.
He
has not been seen since.
His
torn and blood stained clothes were recovered along a spoor down a
slope in an animal infested game park.
The
only reasonable inference in part to be drawn from these facts is
that Alneshto Bayeta is dead.
It
is on the above basis that I accept the first concession by
appellant's counsel as having been properly made.
Alneshto
Bayeta is dead.
It
is further common cause that the remains of Alneshto Bayeta were
never recovered. The precise cause of his death will remain unknown.
What
is common cause however as indicated above, is that he was alive at
the time the appellant and his co-accused robbed him of the vehicle
that he was driving.
He
died thereafter.
The
appellant and his co-accused admit to setting in motion a series of
events that caused the death of Alneshto Bayeta.
There
was direct evidence before the court a
quo
that the deceased's blood stained and torn clothes were found along
a spoor that started 20 metres down the slope where the appellant and
his co accused admit leaving the deceased.
The
inference by the court a
quo
that it was the body of the deceased that was dragged along the spoor
cannot be faulted.
The
fact that the spoor started some 20 metres down the slope has
exercised my mind to a large extent.
What
reasonable inference is to be drawn from this fact other than that
the deceased or his body was thrown 20 metres down the slope?
The
possibility that the deceased may have wandered down the slope in the
darkness after being ejected from the car is not only fanciful but is
also born of my own imagination as the appellants did not so argue.
I
reject it.
The
only reasonable inference that one draws from the starting point of
the spoor down the slope is that the deceased or his remains were
thrown 20 metres down the slope.
It
is therefore my finding that, beyond reasonable doubt, the deceased
or his remains were thrown 20 metres down the steep slope.
Quite
apart from the finding that I make above and in addition thereto,
there is no disputing the fact that, in all that they did on the
night in question, the appellant and his co- accused must have
realised that there was a real risk or possibility that their conduct
might cause the death of the deceased and, notwithstanding that risk
or possibility, continued with such conduct.
The
appellant's counsel has submitted that the appellant acted
“recklessly.”
The
appellant's conduct went beyond “recklessness” or gross
carelessness.
He
must have realised and foreseen the real risk or possibility of death
arising from his conduct right from the time he and his co-accused
robbed the deceased of the motor vehicle. He did not desist from such
conduct at any stage.
It
is on the basis of the above that the concession by the appellant's
counsel that the appellant and his co-accused be found guilty of
murder “with constructive intent”, inapplicable as that verdict
may be, was
properly made.
By
the same token, having accepted that the appellant acted recklessly
in causing the death of the deceased, the submission that the
appellant be found guilty of culpable homicide becomes untenable and
must be rejected.
It
is therefore my finding that on the evidence that was common cause,
and without in any way relying on the appellant's warned and
cautioned statement, the appellant and his co-accused were properly
convicted of murder as defined in s47 of the Code.
I
now turn to the final ground of appeal in this matter.
It
is the challenge to the severity of the sentence that was imposed on
the appellant.
Whether
the sentence imposed on the appellant was severe and induces a sense
of shock
The
ground of appeal attacking the severity of the sentence is framed as
follows:
“Ad
Sentence
The
court a
quo
erred by imposing a sentence which was so manifestly severe as to
induce a sense of shock considering the following:
(a)
The learned judge erred in paying lip service to the vast mitigating
factors proffered by the appellant.
(b)
The learned judge erred by not discounting sentence after making a
finding that the appellant was a youthful first offender.
(c)
The learned judge erred in passing a sentence which instead of
rehabilitating the accused persons, it breaks them.
(d)
The learned judge erred by failing to consider that the accused
person were youthful offenders who still need to explore vast
opportunities in life if given proper rehabilitation, can be
integrated into the society.”
The
sentence that a court convicting an accused person of murder under
s47(1) of the Code has also been codified under subs (4) which
provides that:
“(4)
A person convicted of murder shall be liable -
(a)
Subject to ss 337 and 338 of the Criminal Procedure and Evidence Act
[Chapter
9.07],
to death, imprisonment for life or imprisonment for a period of not
less than twenty years, if the crime was committed in aggravating
circumstances as provided in subs (2) or (3)…….”
Sections
337 and 338 of the Criminal Procedure and Evidence Act [Chapter
9:07],
provide for sentences following a conviction of murder and the
persons upon which the death penalty may not be imposed respectively.
They
are of no direct application in this appeal.
I
note that no attempt was made to link the challenge to the sentence
imposed on the appellant to the above provisions of the Code.
Instead,
the ground of appeal and the oral argument proceeded as if the
sentencing discretion of the court a
quo
was at common law.
Thus,
there was no argument before us that the murder of the deceased in
this appeal was not committed in aggravating circumstances to warrant
the sentence that the court a
quo
imposed. Indeed this would have been an untenable submission to make
in the circumstances of this case where it is common cause that the
murder was committed in the course of and to facilitate a robbery.
The
law takes a very dim view of a murder committed during the course of
a robbery.
In
addition to the numerous case decisions on the matter, the Code lists
murder committed during a robbery as murder committed in aggravating
circumstances.
We
thus have no basis for interfering with the sentence imposed by the
court a
quo
as it falls within the provisions of s47(4) of the Code for a murder
committed in aggravating circumstances.
Disposition
The
appellant has been successful in challenging the admissibility of his
warned and cautioned statement and in setting aside the finding by
the court a
quo
that the murder of the deceased was committed with actual intent. He
has not however succeeded in setting aside his conviction and the
sentence that was imposed on him.
The
net result is that his appeal, being an appeal against conviction and
sentence, must be dismissed.
In
the result, I make the following order:
The
appeal against conviction and sentence is dismissed.
GWAUNZA
DCJ: I
agree
MAVANGIRA
JA:
I agree
Kachere
Legal Practitioners,
appellant's legal practitioners
The
National Prosecuting Authority,
respondent's legal practitioners
