MATHONSI J: The accused faces two counts
of murder and 1 count of attempted murder in breach of section 47 of the
Criminal Law Code, [Chapter 9:23].
The allegations against the accused are that on 3 July 2009 he went to
the residential premises of Evans Vaughan Robert Henry who was 76 years old
(hereinafter referred to as “the deceased 1”), namely No. 7 Simpson Road Gweru
East at about 2200 hours where he gained entry through the main entrance which
was not locked.
Once inside the accused is alleged to have hidden in the spare bedroom
when he realised that the deceased 1 was awake.
When the deceased 1 left his bedroom the accused is alleged to have
taken advantage to enter the bedroom where how hid himself inside a fitted
wardrobe. Upon the deceased's return the
accused is alleged to have attacked him with an unknown object striking him on
the head thereby inflicting the fatal injuries.
The state alleges that after accounting for the deceased 1, Evans, the
accused then went for his wife Valerie who was sleeping in a different bedroom
and struck her on the head with an unknown object rendering her
unconscious. The accused is alleged to
have ransacked the house stealing property which included 1 black supersonic
radio, brass charcoal iron, a candle holder, an FN pistol, a pair of binoculars,
R100 and some groceries. He then made
good his escape.
It is further alleged that some twelve (12) days later on 15 July 2009
the accused proceeded to the residential premises of Raymond Peter Rensburg
(hereinafter referred to as (“the deceased 2”), namely Plot 9 Umsungwe Road,
Harben Park Gweru, where upon arrival he cut the fence in order to gain entry.
Once inside the yard, the accused is alleged to have broken the kitchen
window to gain entry into the house.
It is alleged that the accused then proceeded to the bedroom where the deceased
2; then aged 67, was sleeping and attacked him striking him on the head with an
unknown object resulting in his death.
Having killed the deceased 2, the accused is alleged to have ransacked
the house before making off unnoticed with US$1000, R3000, a gold necklace, a
nokia 1202 cellphone handset, one pair of male black shoes, one blue monarch
suitcase and some groceries.
It was not until September 2009 that the accused was arrested after his
wife Irene Moyo had let the cat out upon making a report of domestic violence
to the police. When the police raided
his home in broad daylight at about 1500 hours they found the accused
sleeping. Upon his arrest, the police
recovered an FN pistol in between the mattress and base of the bed on which the
accused was sleeping. A pair of
binoculars was recovered in a push tray in the same room. These two items had been stolen from the
premises of the deceased 1 after he was killed.
More property, including a Nokia cellphone and a black supersonic radio,
was recovered. These had been stolen
from the premises of the deceased 2 and the deceased 1 respectively and were
recovered following indications made by the accused person.
This is a case in which there is no direct evidence of the commission of
the crime as no body witnessed the killings and the attempt. It is therefore a matter that has to be
decided on circumstantial evidence.
The law relating to circumstantial evidence can
be found in Hoffman and Zeffertt,
The South African Law of
Evidence, 4th ed, at pages 589-590 where the learned
authors stated:
“In R v Blom 1939 AD 288 at 202, 203 WATERMEYER
JA referred to 'two cardinal rules of logic' which governed the use of
circumstantial evidence in a criminal trial:
'(1) The inference sought to be drawn must be
consistent with all the proved facts. If
it is not, then the inference cannot be drawn.
(2) The proved facts should be such that
they exclude every reasonable inference from them save the one 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.”
The question which then arises is whether it can be said that the only
inference to be drawn from the proved facts is that the accused did commit the
offences in counts 1, 2, and 3?
The proved facts are as follows:
Counts One
and two
(1) On
3 July 2009 at 2200 hours someone broke into the premises of the deceased 1 and
battered him on the head causing his death.
(2) At
the sametime, the same perpetrator or someone working in league with him or her
proceeded to where the deceased 1's wife, Valerie aged 80, was sleeping in a
separate bedroom and battered her head, no doubt intending to cause her
death. Fortunately she did not die but
was rendered unconscious. She did not
live long as she died of heart failure on 8 August 2010, bearly a year later.
(3) After
the two attacks, the perpetrator ransacked the house stealing property
including an FN Pistol, a pair of binoculars and a black supersonic radio.
(4) These
three items of property were recovered following the arrest of the accused with
the FN Pistol found hidden under the accused's mattress and the binoculars
displayed in his push tray at the accused's residence. The supersonic radio was recovered from
Harrison Moyo who had purchased it for US$15-00 in July 2009, soon after the
killing, from the accused.
(5) Clearly,
the person who attacked deceased 1 and his wife intended to incapacitate them
in order to facilitate a robbery. The
killing was in the course of a robbery and so was the attack on Valerie.
(6) The
accused's wife also reported a case that accused was spending nights away from
home coming home in the morning with stolen property. Indeed when he was raided during the day he
was found fast asleep.
Can
it be said that there is another inference to be drawn from these facts other
than that the accused is the one who killed the deceased 1, attacked Valerie
and stole their property?
I do not think so. This is particularly so because the accused's
own testimony was a tissue of lies and nothing whatsoever can be gained from
it. So hopeless was he as a witness that
at the end nothing was left of his defence which is rejected in its entirely.
In my view the only inference to be
drawn from the proved facts is that the accused was the perpetrator of the
robbery, the killing and the attempt in Counts 1 and 2.
Count 3
In count 3, the proven facts are the
following:
(1) On
15 July 2009 at 2200hours some one broke into the premises of the deceased 2, who
was 67 years old, and battered him on the head as he slept causing his death.
(2) After
the attack the perpetrator ransacked the house and stole property which
included a nokia cellphone belonging to his wife Marina.
(3) The
said nokia cellphone was sold by the accused to Jetro Moyo for $30-00 in August
2009 a few weeks after the killing. It
was recovered on 21 September 2009 following indications made by the accused
person.
(4) In
this case, therefore, the person who attacked the deceased 2 intended to
incapacitate him in order to facilitate a robbery. The killing was therefore in the course of a
robbery.
Again the question whether there is
another inference to be drawn from the proved facts other than the fact that it
is the accused who perpetrated the killing can only be answered in the
negative.
There is a striking similarity
between the killing of the deceased 1 and the deceased 2.
- In both cases the modus operandi was
to strike at 2200 hours at night.
- Once
inside the house the perpetrator would go on to attack his/her victims on the
head to cause their death.
- when
that was accomplished the perpetrator would ransack the house making off with
property.
- In both situations, the victims were
elderly white people.
I now have to consider whether these
were cases of murder with actual or constructive intent or any other competent
verdict.
Count 1
According
to the doctor who examined the deceased, the following observations were made;
“Head- (1) forehead
round wound with rough edges with a 4cm diameter.
(2) cut wound
5cm long
(3) Bruize on
the right upper eye.
(4) Bleeding
from the nostril
(5) Face
covered with blood.
Severe brain damage as a result of a blow from a heavy
blunt object.
Severe bleeding also contributed to the death of the
victim”
The doctor also observed a lot of
skull fragments of bones and the forehead had a broken base etc.
It was stated in S v Mugwanda 2002 (1) ZLR 574 (S) at 581
D-E that:
“For a trial court
to return a verdict of murder with actual intent it must be satisfied beyond
reasonable doubt that:
(a) either the accused desired to bring
about the death of his victim and succeeded in completing his purpose; or
(b) while pursuing another objective
foresees the death of his victim as a substantially certain result of that
activity and proceeds regardless.”
Where a person meticulously plans a
raid on a defenceless elderly couple in the dead of the night and proceeds to
attack them the way he did at a time when that person was not at risk or under
threat, they can only desire bringing about the death of the victim.
Accordingly the accused is found
guilty of murder with actual intent in count 1.
Count 2
The accused had already accounted for the victims' husband. The victim was a frail 80 year old woman who
was defenceless at the time and was sleeping.
The medical report produced as
exhibit 3 reveals serious wounds on the head one wound was revealing the skull
bone. Although the skull was not
fractured the injuries disoriented the victim leaving possible disability.
Clearly the intent to kill was
there.
Accordingly, the accused is found
guilty of attempted murder.
Count
3
I have already stated that there a
similarities in the way the killings in counts 1 and 3 were perpetrated. I have also cited the law on intent.
The medical evidence shows that the
attack on the deceased 2's head caused serious wounds with a wound on the left
upper part of left eye with rough edges; deep wound on left occipital
area. There was severe bleeding
associated with brain damage. A heavy
blunt object was used.
I can only conclude that the accused
desired to bring about the death of the deceased.
Accordingly the accused is found
guilty of murder with actual intent in count 3.
Extenuation:
Count 2:
Mitigation by Defence Counsel
Accused
was aged 29 years
He
is married with two minor children
He
is the sole bread winner for his family
His
actions show that he is an uneducated and unsophisticated person.
The
majority of property stolen from the complainants' house is of very little
value.
The
accused by virtue of his age – he was 29 at the time - his actions show
immaturity.
Extenuation:
Count 1: Defence
Counsel
In
respect of his age, the accused acted immaturely.
I
reiterate that the property that was stolen is of limited material value.
Accused
did not benefit from the offence, the majority of the stolen property was
recovered.
There
are no reasonable prospects of extenuation in count 1.
Count 3
As
has already been indicated I will not burden the court by repeating his age,
immaturity, lack of sophistication and the fact that property stolen was
recovered.
State Counsel
I submit that there are no extenuating circumstances in this case- those
facts which reduce the moral blameworthiness of the accused.
He preplanned his mission very well, picked his victims very well
focussing on old people and, he knew very well that there would be no
meaningful resistance.
Considering his stature and condition of his victims he could have
stolen from them without killing them.
He still went ahead and attacked them viciously.
In Count 3, the victim was elderly (67).
He attacked the deceased while he was lying in bed. He could have stolen from him without having to
kill him.
At 29 he cannot be described as an immature person. I urge the court to find that there are no
extenuating circumstances.
Count 2
Accused should be sentenced to a prison term of not less than 3 years.
By the court:
Reasons for sentence in count 2
In considering an appropriate sentence we have taken into account the
following factors stated in mitigation.
- the
accused was aged 29 years at the time.
He is married with two minor children and is the sole bread winner for
his family. His actions show that he is
an uneducated and unsophisticated.
- Some of the property was recovered.
Against that should be considered
the fact that he preyed upon a defenceless, frail 80 year old woman and
attacked her ruthlessly directing his blows to the head.
He had already killed her husband
and for that reason she was exposed. The
attack on her was not only senseless but callous in the extreme.
That a human being would find it in
him to do to another human being what he did to this old woman is difficult to
fathom.
It was only fortuitous that she
survived.
Accordingly, the accused is
sentenced to 8 years imprisonment in count 2.
Count 1
This was a murder in the course of a
robbery where what was driving the accused was only greed and inherent evil and
nothing else.
There can be no justification whatsoever
for such conduct.
Accordingly we are unable to find
extenuating circumstances in count one.
Preamble
Accused
Speaks
I
request the court to be lenient on passing sentence. I have two very young children and my parents
are very old now. I am also looking
after my nieces and nephews; I only have my elderly mother.
I
request that you be lenient.
Sentence
The
accused shall be returned to custody where the sentence of death shall be
executed according to law.
Count 3
No distinction exists between the murder in count 1 and the one in Count
3. This was also a murder in the course
of a robbery where the accused was driven by greed and outright brutality and
nothing else.
Regrettably therefore we are unable to
find extenuating circumstances in count 3.
Preamble
Accused
speaks
I
request that the court passes on me a sentence other than death so that I would
be out of prison and take care of my family.
Sentence
The
accused shall be returned to custody where the sentence of death shall be
executed according to law.
Criminal
Division, Attorney General's Office, the state's legal
practitioners
Makonese
and Partners, accused's
legal practitioners
