Criminal
Trial
KUDYA
J:
The
two accused persons are brothers. They were jointly charged with the
murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi
Resettlement Area in Bindura on 31 January 2010. They were alleged to
have caused his death by assaulting him indiscriminately all over his
body and stoning him on the ribs and head.
The
State called the evidence of eight witnesses, one of which was
impeached and produced a total of 17 exhibits consisting of 5
physical and 12 documentary exhibits.
Each
accused person testified on his own behalf and both called the
evidence of the nurse in charge of Bindura Prison camp and produced
one documentary exhibit.
The
missing man and common cause evidence
The
events leading to the alleged murder started at Billabonge farm,
situated some 14km from Chevakadzi Resettlement area in Bindura.
On
some undisclosed date in 2009 two aluminium pipes went missing from
the farm and in January 2010, a further four were stolen from the
same farm. The farm owner set up a team of undercover investigators
consisting of employees of various grades drawn from his security
guards and general workers. They were tasked to investigate
blacksmiths and welders in the surrounding villages and resettlement
areas who were perceived by virtue of their craft to be the consumers
of aluminium pipes.
The
first accused was a welder who used aluminium solder to repair metal
utensils.
The
deceased and his wife Faith Shonhiwa were co-opted into the team and
in consequence sometime in January 2010, the wife took a black pot
with a finger sized hole at the bottom for repair to the second
accused's homestead. Prior to her visit, her employer and the
police, in a bid to apprehend accused 1, unsuccessfully raided his
homestead. In order to allay any suspicion from the occupants of
accused 2's homestead she deliberately misled accused 2's
pregnant wife that she hailed from Kerry and not Billabonge farm. She
left the pot in her custody.
On
Friday, 29 January 2010, the deceased left Billabonge farm. He was
wearing a white shirt, black pair of trousers, scotch-checked cap,
black pair of gumboots, and blue work suit jacket and grey
suit
jacket.
He
took his 12 year old nephew Edmore, destined for Kerry farm, with him
to his communal home. He was expected back on Sunday 31 January 2010.
He was tasked to collect the pot from accused 1's homestead.
That
Sunday at around 2pm, he parted company with his nephew at Kerry farm
and proceeded to Chevakadzi Resettlement area to collect the pot.
The
defence outline of accused 1 and the evidence of a ritual friend to
the accused persons, Pias Muchambo established that he arrived at
accused 1's tuck-shop in Chevakadzi Resettlement area. He was
directed to the first accused's homestead from where he collected
the black pot.
Pias
stated that the man who arrived at the tuck shop was wearing a yellow
shirt, khaki pair of trousers and carried a sack.
He
asked for directions to accused 1's homestead.
Accused
1 who together with accused 2, the witness and other patrons were
drinking beer at the tuck shop, attended to the man some 4m away from
Pias.
Pias
heard the two men discussing about a pot.
Thereafter
the man took the direction to accused 1's homestead and was soon
followed by both accused persons.
The
man was never seen again. He did not return to his wife at Billabonge
farm.
The
missing man's family and workmates conducted a search for him but
failed to find him. On 5 February 2010, the man's wife and four
security guards visited accused 2's homestead where they found
accused 2, his wife and mother and members of the apostolic faith
celebrating the birth of a baby.
The
mother berated her daughter-in-law for accepting the black pot and
failing to refer the man's wife to Bhobho, the local blacksmith.
She turned her ire on the man's wife for allowing herself to be
used by the farm owner of Billabonge in his bid to get her sons
arrested and pretending to be from Kerry farm.
She
intimated that accused 2 had observed her movements on the day she
left the pot and threatened her with harm if she ever visited her
son's homestead again. She however indicated that her pot had been
collected by an elderly man on the preceding Sunday but declined to
describe him further.
In
the result she made a missing person report at Bindura police station
on 8 February 2010. Two detectives accompanied her to accused 2's
homestead and questioned the mother about her outburst on her last
visit. The police managed to collect some aluminium pots and pieces
of pipe which they took to the police station but failed to get any
information on her missing husband.
It
was common cause that the missing man's relatives mounted a big
search for him.
On
14 and 15 February 2010, they co-opted the village head of the two
accused's village, Mhedziso Jenje. They conducted the search in his
village and concentrated their focus in the vicinity of accused 1's
homestead. The second accused and a group of local youths
participated in the search on the second day.
The
missing man was not found.
On
13 March 2010, members of the Bindura CID team consisting of
Detective Sergeants Trymore Mutambi, Leonard Karemba and Niverd
Charuma descended on accused 1's homestead. The two accused persons
were not present. They took their mother and young brother Simbarashe
Ackim to the police station for questioning and left word with the
village head for the two to report at the police station.
On
the next day the two went to the village head's home before
proceeding to the police station. They were detained and their mother
and young brother were released.
The
two accused persons were subjected to intensive interrogation by the
investigating team. On 15 March 2010 the two accused and seven
detectives in plain clothes and one uniformed police officer drove in
a Mitsubishi truck to accused 1's residence and then a further 4kms
to Chemhanza hill. The truck was driven by detective sergeant Mutambi
and the two accused were in the back pan with other detectives.
At
Chemhanza Hill
The
events that took place at Chemhanza hill were hotly disputed by the
two accused persons. The investigating officer, detective sergeant
Mutambi and detective sergeant Karemba's version of events was
confirmed by the village head Mhedziso Jenje and his aide Black
Chihumo.
The
two villagers stated that the two accused persons did not exhibit any
signs of physical discomfort and mental strain during the drive and
at the scene. They did not observe any visible injuries on either of
them. They appeared to be in good health.
They
formed the opinion that the two acted out of their own free volition.
They
were present throughout the indications and heard the words uttered
by each accused person as he pointed out the different spots that
were captured by the police photographer on celluloid.
The
testimony of the village head and his aide was that the two accused
persons led the police to Chemhanza hill.
Accused
2 remained in the police truck while accused 1 led the police some
20m uphill to a burnt patch of ground on which were some ashes. He
pointed at the spot where a man died. He showed the stones, exh 7,
and stick, exh 9 used to assault the man. He pointed out the spot
where the man lay after the assaults and where his remains were
burnt. He walked to the top of the hill and pointed to a cave. He
then entered the cave and retrieved some bones. He emerged with a
plastic bag containing bones about 7 to 8cm long which he showed to
those on top of the hill and when they descended to those at the
bottom of the hill where the car was parked.
The
second accused also followed the same route pointing at various
features along the hill slopes and rocks.
The
village head and his aide said the second accused retrieved a
flattened tin, exh 8 from the cleft between two rocks, a crashed
black pot, exh 3 from on top of the hill and pointed and picked up
the stone he used, exh 7.
A
piece of burnt rubber which looked like the remnant of a gumboot,
exhibit 4 and a piece of cloth from a work suit were retrieved from
the ashes as were some more bones.
Each
accused person picked the stone he used to hit the man and
volunteered information on the part of the body where each directed
his stone.
It
was common cause that the photographs exh 10 to 17 were all taken by
detective sergeant Sharara.
The
two detective sergeants stated how the first accused picked a 1,25m
long stick he used from the ground. He was photographed in exh 10
holding the 1.25m long stick, exh 9.
In
photograph 11 he pointed to the place of killing, a burned out area
with a 3 kilogramme stone and 8 pieces of bones on the ground.
In
exh 12 he pointed to fire burnished stone weapons at the site.
He
was outside the cave in exh 13 and in exh 14 he held one of the
charred bones while pointing at the remains in the cave.
In
exh 15 he pointed to the back of the cave where the smashed pot and
flattened tin were while exh 16 were tree stumps from which firewood
was cut.
They
both indicated that accused 2 in turn pointed to the same features
that were pointed out by accused 1.
Exhibit
17 showed accused 2 holding the stone he used and pointing to the
stumps of cut firewood that was used to burn the remains.
The
photographs did not reveal any visible signs of assault on each of
the accused persons. Detective sergeant Karemba indicated under cross
examination that the missing man's family called the aid of a
spirit medium in their search of the missing man. He was adamant that
the accused and not the spirit medium led them to the Chemhanza hill
where the recoveries were made.
The
evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that
the charred bones were human bones and not animal bones.
He
indicated that they were thicker than bones of such animals as
monkeys and baboons that are regarded as second cousins to humans,
designed as they were to withstand gravity in the upright posture.
He
identified the phalange, tibia and fibula and scapula bones that
constitute the human hand and arm from the remains that were
submitted to him for post mortem.
In
the absence of DNA testing and forensic equipment, he was unable to
establish the cause of death from the charred remains he saw and
whose remains they were notwithstanding the suggestive history that
he extrapolated from the police documents attached to the request for
the post mortem.
Confirmed
warned and cautioned statements
The
first accused's confirmed warned and cautioned statement together
with the record of the proceedings was produced as exh 1 while that
of accused 2 and its record was produced as exh 2.
They
were recorded by detective sergeant Karemba and witnessed by
detective sergeant Charuma on 16 March 2010, the day following the
indications.
On
17 March 2010 an interpreter based at Bindura Magistrates Court
confirmed the accuracy of the interpretations.
They
were both confirmed by a magistrate at Bindura Magistrates Court on
18 March 2010.
In
exh 1, the first accused admitted to murdering the missing man.
He
was wearing a white shirt, blue work suit tied to his waist and a
black pair of trousers and black gumboots, a khaki cap and had a sack
with loose tobacco and half bar of soap.
He
regarded him as the spy from Billabonge farm on a mission to entrap
him for the theft of aluminium pipes.
The
man pretended to be returning to Nyamaropa but took the Billabonge
road after accused 1 went out of sight.
He
related the weapons he used on the missing man and the injuries he
sustained.
He
stated how the missing man reached Chemhanza hill and how and when he
died.
He
described how the missing man came to be a pile of bones and ashes on
the hill slopes and in the cave. He stated what became of his pot.
The
first accused indicated during confirmation proceedings that he
sustained injuries on his ankles from leg irons and on his back from
assaults perpetrated by members of the CID.
The
magistrate nonetheless confirmed the statement after the accused
maintained that these assaults had not influenced him to make the
statement.
The
second accused gave a more detailed statement.
He
admitted the charge. His confession followed the general outline of
his co-accused. He described where and with whom he found the missing
man and his attire of a white shirt, grey pair of trousers and black
gumboots. He related his weapons of choice and the injuries sustained
by the missing man. He stated how he died and the fate that befell
his remains and pot.
The
two detective sergeants were subjected to searching cross
examination.
They
disputed ever subjecting the accused to torture and assault but
admitted conducting intensive interrogation which elicited
contradictory versions from the two.
They
averred that the invitation extended to the village head and his aide
for indications was in accordance with the tenets of community
policing which encouraged the police to involve local leaders in
policing areas under their jurisdiction.
They
disputed being present in court when the warned and cautioned
statements were confirmed.
The
versions of the accused persons
In
his defence outline the first accused stated that the man who came to
collect the pot went to his homestead while he went to protect his
crops from marauding baboons.
He
averred that both the indications and confirmed warned and cautioned
statement were induced by physical assaults and torture. He described
how the detectives assaulted him and his co-accused on the back and
under his feet with baton sticks, planks and open hands and on his
testicles with rubber bands causing them to swell and pass blood
stained urine for a period of 3 weeks for which he was treated at
Parirenyatwa Hospital.
In
his evidence in chief, he intimated that he spent the whole of that
Sunday in his field and was not at the tuck shop.
He
voluntarily surrendered himself to the police, was detained and
intimidated by detective sergeants Mutambi, Karemba and Charuma in a
room with blood stained walls.
He
was then placed in leg irons and ordered to squat. A metal rod was
placed under his knees. He was lifted and placed on a table and
hanged upside down. He was swung on this bridge and hit under his
feet and back. He was shot on his testicles with rubber bands.
The
ordeal lasted for about 45 minutes.
He
was dumped in the holding cells. His co-accused was taken to the same
room and underwent the same ordeal.
He
was treated for leg and back injuries at Bindura prison.
Thereafter
he signed the document that was placed before him without any further
ado.
The
court record from Bindura Magistrate Court shows that they were both
placed on initial remand and advised to apply for bail at the High
Court on 17 March 2010 and did not register any complaints against
the police. They were remanded in prison custody from where they
returned to court on the following day for the confirmation of their
statements. He did not advise the magistrate of his ordeal in fear of
the threats that had been issued against him but admitted making the
statements of his own free will.
In
regards to the indications he intimated that he was forced to pose
for the pictures in exh 10 to 16 by the photographer and that exh 3,
the smashed pot photographed in exh 15 was run over at and collected
from his homestead and planted on the hill by the police on the day
they went for indications.
He
said he was assaulted during the indications.
He
averred the deceased's wife had on an earlier occasion rejected exh
3 as her pot.
He
conceded that he was at the tuck shop when the man described by Pias
Muchambo came but identified him as a Mr Foya of Chemhanza village.
He had a dispute with him over the length of a hose pipe he had
purchased from him, which was resolved by his co-accused who took
them to his garden to measure it.
He
admitted in cross examination that the pot was collected from his
homestead but denied any knowledge of the deceased.
Contrary
to his insistence that he was treated at Bindura prison, the
assistant principal correction officer in charge of clinic records at
that prison did not find any record of the treatment. He however
produced exh 18, an extract of the treatment received by accused 2 at
that prison.
The
second accused categorically denied any knowledge of the deceased.
He
participated in the search of the missing man together with other
youths. The missing man's family was led by a spirit medium, which
focused the search around the first accused's garden and homestead.
He believed that the spirit medium led the police to Chemhanza hill.
He described the bridge technique torture he underwent at the hands
of the investigating team after he voluntarily surrendered himself to
the police. He was hit by baton sticks under his feet and by a soft
drink bottle on the knees and ankles and by a plank on his back. He
was also shot on his testicles with rubber bands.
He
admitted to the offence to stop the torture.
His
version in regards to how they went for indications was similar to
that of his co-accused. The pot, exh 3 and flattened tin, ex 8 both
photographed in exh 15 were collected from the first accused's home
and planted at the scene.
He
was forced to hold a stone while his picture was taken at Chemhanza
hill in a bid to dramatize the situation.
He
suspected the police made a prior visit to the scene on the day they
arrested his mother and young brother.
He
stated that the indications were choreographed and the photo sessions
stage managed by the investigation team.
He
further stated that he admitted the contents of the confirmed
statement before the magistrate in order to forestall any possible
torture that would have followed his denials.
He
was treated in prison for assault injuries recorded in exh 18, the
outpatients register held at Bindura prison that was produced by the
nurse in charge of the prison clinic, Assistant Principal
Correctional Officer Norman Kusosa.
The
accused was examined on 17 March 2010 by Chigumete, a nurse based at
the prison at that time. He complained of a painful right leg arising
from an assault by CID and had a wound on the right limb arising from
assault. The nurse noted “one wound on limb due to assault”. He
administered some aspirin and cloxa tablets and applied betadine
dressing on the wound.
The
diagnosis and medication showed that the second accused was treated
for what he alleged were assault injuries.
Analysis
of the evidence
We
found the testimony of the missing man's wife concerning her
interactions with accused 2, which was not controverted, credible.
She
established that her husband collected the pot on Sunday 31 January
2010.
The
evidence of Pias Muchambo confirmed that the man who came to the tuck
shop looking for the first accused was her husband.
We
were satisfied that notwithstanding that Pias was drinking alcohol on
that day; he established that the discussion between the first
accused and the man revolved around a pot and not a hosepipe.
The
two words do not rhyme.
We
found accused 1's version that he talked to Mr Foya about a
hosepipe an afterthought. He mentioned it for the first time in his
evidence in chief and even then with much hesitation and stuttering.
It did not form part of his instructions to his legal practitioner
and was thus not canvassed with Pias Muchambo in cross examination.
We
recognised the difference between the evidence of Pias and the
missing man's wife on the clothes that he wore on the day he
disappeared.
A
convergence in the description would have confirmed his identity.
We
were however satisfied that his identity was established firstly by
accused 1's defence outline, secondly by the discussion of a pot
between the missing man and accused 1 and lastly by the admission
made by the mother of the accused persons to the man's wife in the
presence of accused 2 that an elderly man had collected the pot on
the Sunday in question.
We
did not believe that the wife could identify the burnished belt
buckle and burnt rubber, both produced as exh 4, and even the burnt
piece of cloth recovered from the scene as the ones that were worn by
her husband on the day he disappeared.
There
were no special marks and features and she did not refer us to any,
which survived the fire that she could reasonably possibly recognise.
In
our view, it was beyond the scope of any human being to positively
assert as she did that these items belonged to her husband. We
however found that these items were similar to those worn by her
husband on the day he disappeared.
The
village head and his aide gave their evidence well. They were not
shaken in cross examination.
We
accepted their testimony on how the search for the missing husband
was conducted and on who the participants were. They confirmed the
items that were recovered and the places on the hill that they were
recovered from. These two witnesses were present during the
indications as independent observers representing their community.
They did not observe any signs of distress on any of the two accused
person during the indications. They did not hear any of the
detectives and especially the photographer dictate to the accused
persons on what to say or do on the hill. They were satisfied that
each accused person freely and voluntarily conducted the indications.
We believed their version more so because the allegations of force
adverted to by each accused person in his respective evidence was not
discussed by counsel with them in cross examination.
In
our view, there were aspects of the evidence of both detective
sergeant Mutambi and Karemba which were credible and others which
were disquieting.
We
accepted that they were part of the investigations team that
thoroughly interrogated the two accused persons separately. They went
for indications on 15 March 2010 and recorded their warned cautioned
statements on the following day.
We
accepted that the two were remanded in prison custody on 17 March
2010 and that on 18 March 2010 detective sergeant Mutambi and not
Karemba requested the accused from prison and took them back to
Bindura Magistrate Court for the confirmation of their statements.
We
accepted that sergeant Mutambi was not in the courtroom during the
confirmation process. The only detective alleged by each of the
accused persons to have remained in the courtroom during the
confirmations was one Chitsa whose further details were not provided.
They
knew sergeant Mutambi by name and if he had been in the confirmation
proceedings they would have mentioned his name.
We
were satisfied by the reasons they proffered for arresting the two
accused persons parents but not the young brother when their target
all along were the two accused persons.
The
father was purportedly arrested on suspicion that he knew something
because he was violent towards the detectives while the mother may
have been arrested for the comments she made to the missing man's
wife on 5 February 2010.
The
young brother was ostensibly arrested to ascertain what he knew about
the missing man. We believed that their release soon after the two
accused person surrendered themselves suggested that they were used
as human bait.
It
was therefore improper for the detectives to employ such illegal and
underhand investigative techniques.
The
conduct of the investigation team was the subject of strident
criticism by both Mr Mutebere,
for accused 1 and Mr Chirenje,
for accused 2.
They
submitted that the accused persons were subjected to intense torture
and assault between the period they handed themselves to the police
and the time they were taken for indications.
Mr
Makoto,
for the State submitted that the indications were conducted and the
warned and cautioned statements recorded freely and voluntarily
without any undue influence having been brought to bear upon each of
the accused persons.
It
was common ground that the warned and cautioned statements, exh 1 and
2 were confirmed. They were accordingly admitted in evidence in terms
of section 256(1) and (2) of the Criminal Procedure and Evidence Act
[Chapter
9:07],
which read:
“256
Admissibility of confessions and statements by accused
(1)
Any confession of the commission of an offence and any statement
which is proved to have been freely and voluntarily made by an
accused person without his having been unduly influenced thereto
shall be admissible in evidence against such accused person if
tendered by the prosecutor, whether such confession or statement was
made before or after his arrest, or after committal and whether
reduced into writing or not: Provided that —
(i)
a certified copy of the record produced in terms of subsection (1) of
section 115B shall be admissible in evidence against the accused;
(ii)
any information given under any enactment which provides a penalty
for a failure or refusal to give such information shall not, on that
account alone, be inadmissible.
[Subsection
amended by section 19 of Act 9 of 2006.]
(2)
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 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 his 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
confirmation tended to portray the two detectives as credible
witnesses in regard to how the statements were recorded. The onus of
establishing on a balance of probabilities that the statements were
not made freely and voluntarily even though they were confirmed lay
on each of the accused persons.
The
accused alleged that they were stripped of their clothing and taken
to a room that had splurges of what they were informed was human and
not animal or fowl blood on the walls. They were each in turn
subjected to the bridge torture technique. This method involves first
tying the victim's legs together preferably with handcuffs. The
victim is forced to squat and an iron rod which is able to hold his
weight is inserted underneath his knees. He is then lifted upside
down by the rod and hanged between two tables. The two tables and the
rod mimic a bridge, hence the name. The hanging causes an abnormal
flow of blood to the head and face and disorientation to the victim.
The
accused person averred that in that helpless state they were each
subjected to painful and indiscriminate assaults under their feet and
on their backs and for accused 2 on the ankles and knees by all
manner of weapons that included baton sticks, planks and soft drink
bottles and shot on their testicles by rubber bands.
Thereafter
they were driven to accused 1's homestead where police ran over the
black pot, exh 3 and the flattened tin exh 8 and collected them
before driving them to Chemhanza Hill. On the following day, they
readily signed the documents that were place before them.
They
were taken to Court on 17 March 2010. They did not disclose to the
remanding magistrate that they had been assaulted by the police. They
were remanded to prison and asked to apply for bail at the High
Court.
On
18 March 2018, they returned to Court for the confirmation of their
statements. They had been warned of the terrible consequences that a
rejection of the statements in court would evoke, so they readily
went along with the ministrations of the confirming magistrate.
In
their respective evidence and under cross examination the two
detectives who testified disputed the allegations of torture and
assault and maintained that they questioned the two intensely and
separately until they confessed the crime.
Their
breakthrough came when the two gave conflicting versions on whether
they had dealt with the missing husband on the fateful Sunday or not.
All resistance broke down when each was confronted with their
respective inconsistencies.
We
were satisfied that the two accused persons established on a balance
of probabilities that they were assaulted by the investigation team
before they went for indications. They however failed to establish
that they were tortured using the bridge method. The injuries they
described to the confirming magistrate and Bindura prison nurse were
disproportional to the brutal assaults they ascribed to the bridge
method. Their legal practitioners did not articulate both the bridge
torture technique and the detailed brutal assaults attributed to this
torture method to the two police detectives during cross examination.
The accused persons also failed to properly describe the torture
method in question.
We
were however satisfied that they were still smarting under the
effects of the assaults they described to the magistrate and prison
nurse when they made their warned and cautioned statements and
appeared for confirmation. Our satisfaction was derived from three
factors:
(i)
The first was that they informed the confirming magistrate that they
had injuries sustained in police custody.
In
respect of the first accused the confirming magistrate cryptically
wrote that he sustained injuries “from the handcuffs and on the
back assault from CID but this did not affect my statement.”
In
respect of accused 2 he wrote that the injury “was because of the
leg irons”.
In
our view, the confirming magistrate abdicated his responsibilities
towards the accused persons and the criminal justice system.
These
responses should have served to alert the confirming magistrate of
the dangers of confirming these particular statements without
investigating the circumstances in which the handcuffs and leg irons
caused these injuries.
It
is a notorious fact that leg irons and handcuffs do not normally
cause injury unless they are deliberately tightened by the
handcuffing officer.
Our
view is that the deliberate tightening of handcuffs or leg irons is
inconsistent with the exercise of volition.
Our
view is that the injuries were in the main caused by the tightening
of the leg irons on each accused person.
Assaulting
a suspect is not only a crime but does negate and undermine the
voluntariness of any resultant confession. After all it is illogical
to assault a suspect who is admitting the charge.
The
suspicion of the magistrate should have been further aroused by the
caveat advanced by the first accused that despite the assault he
freely made the statement.
The
evidence of the assistant principal correction officer in charge of
Bindura prison hospital and exhibit 18 clearly demonstrated that the
second accused was treated for assault injuries at Bindura prison.
However
the injuries in our view were consistent with tightened leg irons.
Thus
even though he did not find any reference to the treatment
administered on accused 1, we were satisfied that both of them were
assaulted in the same way.
It
is for these reasons that we were satisfied that the confessions that
led to Chemhanza Hill and the recording of the warned and cautioned
statements and the confirmation proceedings were extracted through
these assaults.
We
did not believe the investigations team's platitudes of innocence.
They were incredible and untruthful witnesses in this regard. We will
therefore disregard the contents of the confirmed warned and
cautioned statement in our determination of whether or not the
accused persons committed the offence they stand charged with.
In
our assessment both accused persons, like the police detectives gave
truthful evidence in certain respects and false evidence in other
respects.
We
accepted their version on how they were arrested and assaulted in
police custody.
We
did not believe them when they said they never met the missing
husband on that fateful Sunday. Pias Muchambo, whom they both
accepted was a truthful and not malevolent witness, saw and heard
accused 1 talk to the missing husband. He saw the two accused trail
him to accused 1's homestead. That the missing husband collected
the pot that Sunday was confirmed by the ranting of the accused
persons mother in the presence of accused 2.
We
did not accept their version that the police had prior knowledge of
the scene of crime. Accused 2 suggested that a spirit medium had
located the scene of crime before the date on which they went for
indications and suspected that the police were coming from the
Chemhanza Hill on the day they arrested his mother and brother. His
suspicions were not backed by any concrete evidence. His counsel did
not suggest this as a probability to the two detectives and wife of
the missing husband when they were on the witness stand. He did not
call his mother or brother or any other witness to verify his
suspicions.
We
found it ludicrous that the spirit medium that had led the searchers
on a wild goose chase on 14 and 15 February 2010 around the accused
1's homestead and village would have developed such prescient
powers of discovery a month later.
We
would have expected a spirit medium endowed with such powers to have
led the search party to Chemhanza Hill from the very beginning.
Rather,
the testimony of the wife, Pias Muchambo, the village head and his
aide was that the missing husband's family visited the scene after
the indications to collect the ashes for burial.
We
did not believe them when they averred that the police detectives led
them to Chemhanza Hill.
We
find that they pointed out Chemhanza Hill to the detectives.
We
did not believe their story concerning the recovery of the pot and
the flattened tin from accused 1's homestead for two reasons:
(i)
The first was that neither the village head nor his aide who went
with them to Chemhanza Hill witnessed this incident nor were
questioned about it by defence counsel.
(ii)
The second is that both the pot and the flattened tin were retrieved
from the top of the hill in the presence of the village head and his
aide who at all times were part of the indications team.
The
police detectives who were at all times in their sight did not have
an opportunity to plant these exhibits before they were pointed out
by each accused person.
We
did not believe the accused when they stated that they were told
where and what to point at Chemhanza Hill.
We
believed the village head and his aide that the two accused persons
each in turn pointed out the places and items that are covered in the
photographs exh 10 to 17.
In
our law confessions that are extracted and extra curial statements
that are made through unlawful means are inadmissible in evidence.
The
police must obey the law and all statements made whether confirmed or
not outside the strictures of the law are illegal and should not be
considered by a court as evidence against the maker.
The
law prohibits us to consider exhibit 1 and 2 as evidence against the
accused persons, however self-incriminating they may be against them.
However,
section 258(2) of the Criminal Procedure and Evidence Act admits into
evidence anything that was pointed out by any person under trial even
though the pointing out was in consequence of an inadmissible
confession or statement. The section provides that:
“258
Admissibility of facts discovered by means of inadmissible confession
(2)
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.”
We
were mindful of the construction rendered to this section by McNally
JA in S
v Nkomo 1989
(3) ZLR 117 (S) at 129H-131B-H and 133D.
We
did not find that the assaults that they were subjected to amounted
to torture.
The
evidence established that they were not forced to point at any spot
on the hill. They voluntarily took the police to each spot on the
hill and uttered the accompanying words connected to each spot freely
and voluntarily.
We
find that they pointed out the scene of crime and the various
positions and items that were connected to the commission of the
crime freely and voluntarily.
The
detectives did not have foreknowledge of the scene of crime or its
state.
A
pot similar to the one the wife left at accused 2's residence for
repairs was recovered. The other dress apparel like the buckle, the
piece of rubber and piece of work suit similar to those worn by the
deceased on the day he went missing were also recovered as a result
of the pointing out of the accused persons.
Counsel
for the accused persons strenuously argued that the State had failed
to establish beyond a reasonable doubt that the bones belonged
firstly, to a human being, secondly to a male and thirdly to the
missing husband.
We
were satisfied that Dr Hlatwayo established that the bones belonged
to a human being. He physically examined the bones that were
retrieved from Chemhanza Hill. He saw bones belonging to a human
hand, the tibia and fibula and phalange and the human shoulder, the
scapula and others from the vertebrae bones of the backbone. In the
absence of DNA testing, the doctor was unable to say whether they
belonged to a male or female. He could not say they belonged to the
missing husband nor establish the cause of death.
It
was common cause that there was no direct evidence to establish the
identity of the person to whom the bones belonged, the cause of death
and the perpetrators, if any, who might have killed that person.
Both
State and defence counsel submitted that answers to these questions
must perforce rely on the circumstantial evidence led during the
trial.
Mr
Makoto
submitted that the circumstantial evidence established that the
charred remains belonged to the missing husband, the cause of death
was the malevolent force directed to his person and the perpetrators
were the accused persons.
In
S
v Nyamayaro
1987 (2) ZLR 222 (S) at 225G-226A KORSAH JA cited with approval the
sentiments of Watermeyer
JA
in R
v Blom
1939 AD 188 at 202-203 that:
“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
our view the State has proved beyond a reasonable doubt that the
missing husband collected his pot from accused 1. The two accused
persons were last seen following him to accused 1's homestead. The
pot that he collected from accused 1 was positively identified by the
hole at the base by the deceased's wife as the one that was
collected by her husband. On the indications of both accused persons
the pot was recovered from atop Chemhanza Hill. The accused persons
in turn pointed to various places on the hill and gave information as
they did so of how the deceased came to Chemhanza hill. They pointed
out the weapons used, the 1.25m long stick exh 9 and two stones
weighing 3kg each, exh 7. They demonstrated how the first accused
fell the deceased to the ground before crashing his ribs with the 3kg
stone and how accused 2 finished him off with a skull crunching
strike to the head with the other stone of the same weight. They
pointed at the trees they cut and the spot they set the corpse on
fire. They pointed out the tin they used to carry some of the charred
bones in. They pointed out a cave on top of the hill where they
deposited them. They pointed the spot where they threw the pot and
tin. Apparels similar to those worn by the deceased were recovered
from the scene. All these were established by the State beyond a
reasonable doubt.
That
the charred remains belonged to the missing husband was consistent
with these proved facts.
The
cause of death by the blows delivered to the ribs and head was
established by the information the accused gave that accompanied the
pointing out.
The
stones, exh 7, were pointed out by the accused persons and recovered.
These
proved facts exclude every other reasonable inference which could be
drawn on the cause of death and identity of the owner of the bones
and the purveyors of that death.
It
was common cause that the deceased and his wife were part of an
elaborate plot designed to entrap the first accused in the theft of
aluminium pipes belonging to the farm owner of Billabonge farm that
were used as welding solder. We were satisfied that the first accused
was aware that he was on the farm owner's crosshairs and took
measures to diffuse the plot.
Initial
Verdict
We
are satisfied that by inflicting one blow by a 3kg stone on the ribs
and another by a stone of equivalent weight on the head of a
prostrate and defenceless 60 year old the two accused persons
actually desired the death of the deceased.
They
knew that these were vulnerable parts of the human anatomy and that
death would ensue from their respective conduct. They desired the
death of the deceased. We accordingly find them guilty of murder with
actual intent.
Extenuating
Circumstances
The
Sixth Schedule to the Constitution
There
are two paragraphs to the Sixth Schedule of the Constitution which
have a bearing on the question of extenuation. The first is para 2,
which stipulates that:
“2.
This schedule prevails, to the extent of any inconsistency, over all
other provisions of this Constitution.”
And
the second is para 18(9) and (10) which provide that:
“(9)
All cases, other than pending constitutional cases, that were pending
before any court before the effective date may be continued before
that court or the equivalent court established by this Constitution,
as the case may be, as if this Constitution had been in force when
the cases were commenced, but —
(a)
the procedure to be followed in those cases must be the procedure
that was applicable to them immediately before the effective date;
and
(b)
the procedure referred to in subparagraph (a)
applies to those cases even if it is contrary to any provision of
Chapter 4 of this Constitution.
(10)
For the purposes of subparagraph (9) —
(a)
a criminal case is deemed to have commenced when the accused person
pleaded to the charge;”
The
effective date as defined in para 1 as read with para 3(2) of the
Sixth Schedule to the Constitution was the date on which the
President elected in terms of the Constitution assumed office, which
he did 22 August 2013.
The
two accused persons pleaded to the charge on 5 May 2011.
The
procedure to be followed by the Court before the effective date was
the one which required the Court to consider extenuating
circumstances. In the absence of extenuating circumstances the Court
was obliged to impose the death penalty. Where the Court found
extenuating circumstances, it had the discretion to impose the death
penalty if the aggravating features outweighed the mitigatory
features. It was however precluded from imposing the death penalty
where the offender was a woman convicted of the murder of her newly
born child or was pregnant, or against any person over the age 70
years on the date of sentence or under the age of 18 years at the
time the offence was committed.
The
Constitution removed the imposition of the mandatory death sentence.
Section
48(2) states that:
“(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.”
In
S
v Samson Mutero
SC28/2017 at p17 of the cyclostyled judgment Gowora
JA
correctly construed section 48(2) as an enabling and not a sentencing
provision. She correctly stated that:
“The
court a
quo
however
completely overlooked the section [section 337 of the Criminal
Procedure and Evidence Act as it was prior to the amendment of 1 July
2016] 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 the 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
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
murder committed in aggravating circumstances. Therefore, it stands
to reason that section 48 is not such a 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).”
It
must be borne in mind that the murder in S
v Mutero
was committed on 20 September 2013 and the plea taken on 28 January
2015. The date of conviction was not disclosed but it must have been
before 3 August 2015, the date on which the appeal was first argued
and thus well before the promulgation of the contemplated law.
In
our view, the provisions of para 2 and para 18(9) and (10) of the
Sixth Schedule to the Constitution override section 48(2) for a plea
taken before the effective date.
The
effect of Gowora JA's proposition read in the context of para 2 and
18(9) and (10) of the Sixth Schedule was that the death penalty could
not be passed on convictions imposed in the interregnum between the
effective date and the date on which the law contemplated by section
48(2) was promulgated in respect of all pleas taken during the
interregnum.
The
relevant law was promulgated on 1 July 2016
in section 8 of Part XX the General Laws Amendment Act No.3 of 2016,
which effectively repealed subsections (2) and (3) of section 47 of
the Criminal Law (Codification and Reform) Act [Chapter
9:23]
and substituted them with six subsections.
The
Court now has a discretion on whether or not to pass the death
penalty
over
all convictions for which the pleas were entered into on or after 22
August 2013.
However,
in the present matter, as the plea was entered into before the
effective date and as the provisions of para 2 and para 18(9) and
(10) override the provisions of section 48(2) of the Constitution, we
are mandated to consider the question of extenuating circumstances.
It
is trite that extenuating circumstances are factors in the commission
of the offence which reduce the offender's moral guilt rather than
his legal guilt.
Reid
Rowland in Criminal
Procedure in Zimbabwe
on
p25-36 lists several extenuation circumstances found in numerous
cases by our courts. The only one we found relevant was intoxication.
We
are satisfied that they did not partake of alcohol on that day to
boost their courage as they were unaware of the pending visit of the
deceased.
Like
McNally
JA
in
S
v Kamusewu
1988 (1) ZLR 182 at 189A we found the “mindless and wanton
brutality of [their] actions support the conclusion that what each
accused did was done at a time when his normal inhibitions had been
clouded by his consumption of alcohol.” See also S
v Tshuma
1991 (1) ZLR 166 (S) at 170C-G.
The
two had been drinking Scheepers cane spirit and opaque beer from 6am
and 10am respectively until about 2pm.
Even
though they knew what they were doing we are satisfied that the
alcohol they imbibed influenced their irrational behaviour on that
day.
We
find intoxication to be an extenuating circumstance.
Final
Verdict
We
return a final verdict of murder with actual intent with extenuating
circumstances.
Sentence
The
appropriate penalty in a murder with actual intent with extenuating
factors is derived from an assessment of the circumstances pertaining
to the offender, the offence and the interests of society.
The
first accused is a married man with 5 children while his younger
brother, the second accused is 33 years with a wife and a child.
They
are first offenders who have been deprived of a normal family life
for the past 8 years. In consequence, they have been unable to
participate in the nurturing of their children and the provision of
love, security and sustenance of their respective families.
They
suffered pre-trial physical punishment in police custody and mental
anguish in prison custody, as they awaited the conclusion of their
trial; both of which are also highly mitigatory.
The
delay was in the main occasioned by the absence of a crucial state
witness who was away on international duty for protracted periods of
time between 2011 and 2016.
The
offence was committed with despicable, mindless and wanton brutality.
The
two brothers paid no regard to the sanctity of life. They desecrated
the remains of the deceased by fire, in an obvious attempt to
obliterate the evidence of their cruel and evil deed. The deceased's
mission as an undercover agent had been unsuccessful. He had not
found any incriminating evidence against the two accused persons. He
did not deserve such a shocking and terrifying end. Their respective
moral blameworthiness was very high.
I
agree with counsel for both accused persons and the State that their
mitigatory features, especially the long pre-trial incaceration and
punishment militate against the imposition of life imprisonment or
even the maximum term of imprisonment in the 20-25 years range that
is often imposed for murder with actual intent with extenuating
circumstances.
I
will impose on each accused a sentence similar to the one imposed in
S
v Mutsunge and Anor
1987 (1) ZLR 53 (S) at 61D and S
v Tshuma, supra.
Accordingly,
after weighing their mitigatory features against their aggravating
features, each accused person is sentenced to 20 years imprisonment.
Prosecution
General's Office,
State legal practitioners
Mushangwe
and Company,
Accused 1 legal practitioners
Chirenje
Legal Practitioners,
Accused 2 legal practitioners
1.
Constitution
of Zimbabwe Amendment (No. 20) Act 2013
2.
GN108/2016 in the Government Gazette of 1 July 2016
