This is an appeal against both conviction and sentence. The appellant was convicted of two counts of murder with actual intent committed in aggravating circumstances and sentenced to death by the High Court sitting at Bulawayo on 11 July 2018.
At the conclusion of hearing of the appeal we dismissed the appeal against both conviction and sentence. We indicated that reasons will follow in due course. These are our reasons.
FACTUAL BACKGROUND
The appellant was arraigned before the High Court (court a quo) sitting at Bulawayo facing two counts of murder committed in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as the Code) in aggravating circumstances.
The allegations were, that, in January 2017, on two separate dates, the appellant shot and killed Mboneli Joko Ncube and Cyprian Kadzurunga who were his friends.
In the first Count, on 12 January 2017, the appellant picked up his neighbour Mboneli Joko Ncube and one Terence Kajese outside Alasko Supermarket at the corner of Robert Mugabe Way and 11th Avenue in Bulawayo. The appellant was driving his Nissan Gloria motor vehicle registration number ACV 8914. The appellant drove with the two to Burnside where he dropped off Terence after which he drove to Hillside Shopping Centre with Mboneli. The two thereafter drove to number 13 West Mount Road, Burnside, Bulawayo, where, upon arrival, the appellant drew an Optima shotgun serial number 13752 from his motor vehicle and shot Mboneli Joko Ncube twice on the chest.
The deceased died on the spot
After gunning down the deceased, the appellant mutilated his body into various parts before burying some of the dismembered parts in four different shallow graves at that property. He took some of the parts away.
On the second Count, the allegations were that, on 29 January 2017, in the afternoon, the appellant visited the deceased at his home in Queenspark, Bulawayo. The two then left that home on a walk as friends. As the two were walking along a footpath linking Glengary and Queenspark East in Bulawayo, the appellant, again, armed with the same Optima shotgun which he used to shoot Mboneli Joko Ncube, shot Cyprian Kadzurunga twice on the head and abdomen causing his death.
Thereafter, the appellant robbed the deceased of his LG cell phone and Asus laptop which items he later tasked another individual to sell.
The appellant then ferried the body of the deceased in a wheelbarrow to his motor vehicle where he bundled the body into the boot of his motor vehicle before driving to number 13 West Mount Road, Burnside, Bulawayo. When he arrived there, he again buried the body at that address after hiring two individuals to dig a shallow grave which he misled them to believe was for other innocuous purposes. The appellant also took some body parts before burying the body in the shallow grave.
The appellant's defence was to the effect, that, when he killed both deceased persons, he was drinking alcohol, injecting himself with heroine, and also taking crystal meth. It was his defence that he was intoxicated during the commission of the offences.
In the first Count, as he was in the company of the deceased he felt an urge to kill someone and he was of the belief that if he did so he would get crazy. He also indicated, that, after committing the second offence, under the alleged intoxication, he later became sad and regretful for what he had done.
In its detailed analysis of the evidence, the court a quo found, that, the appellant had given contradictory testimony.
In respect of the first Count, the account given in his Defence Outline differed materially from the one he gave in his evidence in chief.
In his evidence in chief, he stated, that, he went to the shops to meet a drug dealer from whom he got heroine and crystal meth. He wanted a convenient, discreet place to take the drugs and the deceased advised him to go to Number 13 West Mount Road, Burnside, Bulawayo where he claimed he then took the drugs and got high.
He claimed, that, after taking the drugs, he started seeing “Lucifer” who then instructed him to kill the deceased, cut up the body, and consume the liver.
He went on to say, that, he did a number of things upon Lucifer's command. It was no longer his own desire to get crazy upon killing someone - per his Defence Outline.
Similar contradictions were noted in respect of the second Count.
He now said he was working under the command of Lucifer - yet this was not in his Defence Outline.
The court a quo also noted, that, under cross examination, the appellant refused to answer critical questions alleging that he had made a pact with Lucifer never to tell anyone.
The court a quo also noted, that, it was not in dispute that the appellant shot and killed the two deceased persons. His only defence was that he did it upon the devil's instruction and he was under the influence of drugs hence his claim that he was mentally unstable at the material time.
The insanity defence was thrown out on the basis, that, the appellant was examined, on 16 November 2017, at the instance of the court itself, and the medical practitioners who examined him concluded that he was fully alert and oriented in all aspects; and that he was mentally stable and fit to stand trial.
The court a quo threw out the appellant's defence and found him guilty of murder with actual intent.
It found, that, the murders were committed in aggravating circumstances that immensely outweighed the mitigatory circumstances. It sentenced him to death in terms of section 47(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) as read with section 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07].
As regards his mental state at the time of the commission of the offences, the court a quo held, that, the meticulous planning and execution of the crimes by the appellant pointed to a person who was in full control of his mental faculties.
Aggrieved by the findings of the court a quo, the appellant lodged the present appeal on a single ground alleging that the court a quo erred and seriously misdirected itself in convicting him on two Counts of murder when there was cogent evidence that he was mentally incapacitated to appreciate the implications of his actions at the material time of committing the said offences.
THE ISSUE FOR DETERMINATION
Whether or not the court a quo erred and misdirected itself in not finding that the appellant was mentally incapacitated at the time of commission of the offences.
APPLICATION OF THE LAW TO THE FACTS
The issue of the appellant's mental capacity to stand trial was determined by the court a quo after ordering that he be examined. Both medical practitioners determined that he was of sound mind.
However, it was the appellant's submission, on appeal, that, the court a quo should have assessed whether he was mentally sound at the time of commission of the offences and not whether he was mentally stable to stand trial.
Counsel for the appellant submitted, that, the circumstances in which the appellant caused the death of the two deceased persons were out of the ordinary or expected human behaviour, and, as such, show that he suffered from mental incapacity at the time of commission of the crimes.
Per contra, counsel for the respondent submitted, that, the essential elements for the offences were proven.
Counsel further submitted, that, where one relies on the defence of insanity, the burden rests on him/her to prove that he/she suffered from mental incapacity at the relevant time in terms of the proviso to section 18(4) of the Criminal Law (Codification and Reform) Act (the Code).
In casu, counsel submitted, that, the appellant failed to place such evidence before the court a quo.
Counsel contended, that, a mere say so of one's lack of mental capacity does not suffice, and that, in terms of the proviso to section 225 of the Criminal Law (Codification and Reform) Act (the Code), a verdict that a person was mentally disordered will not be returned if the person's mind was only temporarily disordered or disabled by the effects of alcohol or a drug.
The record of proceedings shows, that, the court a quo ordered that the appellant's mental capacity be examined which resulted in the two medical reports that were placed before it. The reports confirmed that the appellant was of sound mind and fit to stand trial.
Further to the medical reports, the court a quo made factual findings which supported the position that the appellant was of sound mind when he committed the said crimes.
It found, that, after killing the first deceased, the appellant hid the body at the property after which he drove about 15 kilometres to Glengary suburb, Bulawayo. He also went to the deceased's home to look for him so that he could throw off suspicion. He then sent an sms (text message) to the deceased's relative using the deceased's mobile phone number, pretending to be the deceased, informing them that he was fleeing from the police to South Africa. He did this, again, to distance himself from the crime. He dug graves to hide the dismembered body parts showing that he was fully aware of his actions.
On Count Two, after killing his victim, the appellant drove all the way to town to pick up two people to assist him to dig the grave and lied to them, that, he needed a dump pit. Later, the appellant hired another person to fill up the pit and lied to him that the pit was abandoned by plumbers who were working there. He then asked this individual to sell the deceased's laptop instead of selling it himself in order to distance himself from the offence. He again sent an sms (text message) to the second deceased's mother, pretending to be the second deceased, informing her that he was fleeing from members of the army who wanted to kill him because of some sensitive information he had hence he was going to South Africa.
The act of sending messages to his victims relatives was aimed at ensuring that the families of the deceased persons would not look for the deceased believing that they had fled to South Africa.
The appellant also lied to the police and misled them about his contact with the second deceased.
Before being charged with the crimes, the appellant attempted to escape from police custody upon realising that his cover was about to be blown.
The above sequence of events shows that the appellant had planned to commit the offences.
He carefully chose his victims, led them to isolated places where he killed them and buried parts of their remains that he had no use for at the same property where he was the caretaker.
He cannot be taken to have been mentally incapacitated in the circumstances. His mental faculties were fully functional.
What is more condemnatory or damning is the fact that the appellant executed the offences and cover-ups over a number of days. He could not have been under the influence of drugs at all material times.
Assessed cumulatively, the appellant's actions point to the fact that he executed the offences with craftiness and precision.
From taking the gun from his mother's place, hiding the bodies, hiring help, looking for the first deceased after killing him, to sending messages to the deceased's relatives pretending to be the deceased persons all point to meticulous planning by someone of sound mind.
I am of the view, that, this illustrates the point that the appellant was in full control of his senses when he executed the crimes. In that light, the court a quo cannot be faulted for finding, in the face of such overwhelming evidence before it, that the appellant was mentally stable at the time of committing the crimes.
It is a settled position of the law that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense, that, no reasonable tribunal, applying its mind to the same facts, would have arrived at the same conclusion; or the lower court had taken leave of its senses; or the decision is so outrageous in its defiance of logic that no sensible person, having applied his or her mind to the question to be decided could have arrived at the decision: see ZINWA v Mwoyounotsva SC28-15.
In casu, there was no such misdirection.
