This is an appeal against the whole judgment of the High Court (court a quo) sitting at Bulawayo which convicted the appellant of murder in contravention of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23] (the Code).
Subsequent to the conviction, the appellant was sentenced to death.
This is an automatic appeal against both the conviction and sentence in terms of section 44(2)(c) of the High Court Act [Chapter 7:06].
At the close of submissions, we dismissed the appeal and indicated that our reasons would be availed in due course. I set out hereunder the reasons for this order.
BACKGROUND FACTS
On 22 October 2018, the deceased, Sheila Moyo, along with two other women, Lily and Laiza Gumede, left their homes to fetch some firewood in the Esiphaziphazi Mountains. At about 17:00 hours, the three women started heading back towards their homes. When they were about two kilometres away from their homes, they stopped to rest as they were carrying firewood which was heavy.
It was at that time that they first encountered the appellant who passed them going in the opposite direction towards the Esiphaziphazi Mountains.
After a short break, the trio proceeded with their journey back home. After another short distance, they again stopped and took a short rest.
As they were resting the appellant passed them again and this time he was now walking in the same direction as the three women, that is, going towards Cowdray Park Suburb, Bulawayo.
Inexplicably, the appellant again re-appeared a short time later and this time he was going towards Esiphaziphazi Mountains.
Once the women had resumed their journey, the accused again re-appeared.
This time, he forcefully grabbed Lily Gumede by the neck from the back. When the deceased valiantly intervened in order to assist Lily Gumede, the appellant turned his attention towards her and tried to attack her. She ran away going towards the Esiphaziphazi Mountains. The appellant gave chase, caught up with her, and assaulted her with a log on the back of her head. The deceased fell down as a result of the heavy blow. She was then dragged by the heels into a maize field as the appellant continued to assault her until she lost consciousness.
It is alleged, that, once in the maize field, the accused proceeded to rape the deceased and thereafter fled the scene and hid at a nearby hill.
In the meantime, Lily and Laiza Gumede ran towards the nearby houses for help and one, Labion Moyo, then accompanied them back to where the deceased was.
They found the deceased bleeding from both her nose and mouth and unconscious. Her face was swollen and there were drag marks leading from the path to the maize field where she was found. The deceased's undergarments had been removed from her person and left next to her. The deceased was ferried to the hospital. She succumbed to the injuries from the attack on 24 October 2018 at Mpilo Hospital - a mere two days after the incident.
A post-mortem report compiled by a doctor was admitted into evidence by consent.
He found that the cause of death was intracranial haemorrhage and head injury. He also found that there were indications of physical and sexual assault as there was bruising on her vaginal wall and bruises on her face and head. He concluded that the deceased had been assaulted and raped.
On 30 October 2018, the appellant was identified at a police parade, amongst eight other male adults, by Lily Gumede, as the perpetrator of the offence. This followed a police investigation in which the appellant's girlfriend led the police to their home where his blood-stained clothes were recovered. The DNA sample found on his blood stained pair of jeans and navy blue and grey jacket proved a positive match with the deceased placing the appellant firmly at the scene.
However, her vaginal swab was not indicative of any DNA residue belonging to anyone else other than herself.
Upon the appellant's arrest, he made indications to the police detailing how he had assaulted the deceased.
Thereafter, the appellant was formally charged with murder committed in aggravating circumstances and arraigned before the court a quo.
In his Defence Outline, the appellant pleaded guilty to a lesser charge of culpable homicide. He admitted assaulting the deceased with a log once on the head. He argued that the reason for such action was that he had been provoked by the deceased who had called him a murderer.
The appellant further testified, that, it was the deceased who struck him on the neck and shoulder first before he dispossessed her of the log and hit her once on the head and she fell down losing consciousness.
He strenuously refuted the rape allegations....,.
Under cross-examination, the appellant disputed the suggestion that he had raped the deceased after the assault.
When probed about who could have been responsible for the rape during the short interval that her companions fled and then returned with one Labion Moyo, he said that he did not know.
The appellant accepted that he was at the crime scene and testified, that, after the offence he hid a short distance away where he remained in observation of the deceased up to the point that her companions returned....,.
In determining the matter, the court a quo found that the post mortem report showed that excessive force had been used to assault the deceased and that the assault led to her death. It also concluded, on the evidence presented, that the deceased had been sexually abused.
It also found that the last person to see the deceased alive was the appellant and hence no other person could have possibly had a sexual encounter with her within the limited time frame following the attack....,.
This is an automatic appeal to this Court against both the conviction and sentence on the following grounds:
AD CONVICTION
1....,.
2....,.
3. The court a quo grossly misdirected itself in law and fact by making a finding that the Appellant had raped the deceased yet there was no sufficient evidence to prove this finding....,.
Counsel for the appellant submitted, that, the scientific evidence introduced a new element to the case.
He submitted, that, the scrapings under the deceased's finger nails introduced the possibility of a third party being at the scene as they did not match the appellant....,.
He also disputed that it was the appellant who moved the body of the deceased into the maize field.
Critically, he further submitted that the vaginal swab did not match with the appellant's fluid thereby indicating that he did not rape the deceased. He thus insisted that the DNA sample was not consistent with the allegations of rape....,.
Per contra, counsel for the respondent submitted, that, the conviction could not be faulted as the evidence was overwhelming and pointed to the appellant's guilt.
He invited the court to consider that the appellant accepted being at the scene and striking the deceased but merely disputes raping the deceased. He contended that after striking the deceased she lost consciousness and the only person who could have moved her was the appellant.
He further asserted, that, the inference of rape could only be made against the appellant.
Counsel for the respondent relied on the postmortem report as evidence of the rape incident together with the fact that her undergarment had been removed.
Finally, he asked the court to take into account that the appellant was the last person to have seen the deceased alive. He submitted, that, following the appellant's encounter with the deceased, when he assaulted her, he thereafter watched over her from a distance until her friends returned with help....,.
WHETHER OR NOT THE CONVICTION WAS PROPER
The post-mortem report also reflects that the deceased was raped as there was bruising to the introitus and the vaginal wall. The doctor also found “copious amounts of thick seminal fluid-like substance” in her vagina reflecting that she had had sexual intercourse just before she died.
Admittedly, the evidence from the samples obtained did not implicate the appellant; however, this could have been due to a number of factors that detracted from a positive result, such as, when the samples were extracted and how they were preserved until they were taken to the laboratory for analysis.
It cannot be said that the physical examination by the doctor, as reflected in the post mortem report is extinguished by the evidence which emanated from the vaginal swab.
It is evident that the swab test did not rebut the allegation of rape but rather merely failed to provide any indication of the appellant's residue. Thus, the swab test on its own, cannot be used to rebut the allegation of rape.
The evidence in the post-mortem report left no doubt that there had been sexual interference.
It should also be borne in mind that the deceased's undergarment was removed and found at her side which was also highly suggestive of rape.
From the appellant's own evidence, it was apparent that he remained watching the deceased from a distance until the return of the rescue party. He accepted that no one else went to the scene.
Thus, it could only have been the appellant who raped the deceased.
