HLATSHWAYO
JA: The
appellant was convicted by the High Court sitting at Bulawayo on 21
July 2005 of murder with actual intent as defined in s47(1) of the
Criminal Law (Codification and Reform) Act [Cap
9:23]
and sentenced to death after the court found no extenuating
circumstances.
No
notice of appeal was filed in this matter on behalf of the appellant,
only heads of argument. However, because there is an automatic right
of appeal against the death sentence, it shall be assumed that the
appellant herein is appealing against both conviction and sentence
and that the ground of appeal are related to his defense outline and
other submissions made in the course of the trial and sentence. In
other words, his appeal is a challenge of the findings of the court a
quo
with respect to both conviction and sentence.
Mrs
Magosvongwe
in the heads of argument filed on behalf of the appellant, correctly
conceded and as shall be shown below, that there were no meaningful
submissions that could be made against either conviction or sentence
and that both the conviction of murder with actual intent and the
sentence of death were properly returned by the court a
quo.
The
facts which are common cause are that the appellant who was
twenty-three (23) years old at the time of the commission of the
offence was employed as a gardener by the deceased, Mr John Jenks, a
male adult who was seventy (70) years old at the time of his death.
They both stayed at House Number 3, 21 Avenue, Famona, Bulawayo; the
appellant living at the worker's quarters while the deceased stayed
in the main house. On 9 November 2002 the appellant struck the
deceased on the back of his head with an axe, killing him instantly.
The appellant then dug a shallow grave at the back of the house in
which he buried the deceased's body. On 9 and 13 November 2002 the
appellant sold the deceased's household property, namely a 12 cubic
feet Imperial refrigerator and a display cabinet, representing
himself as the legal owner thereof. On 19 November 2002 the appellant
was arrested in connection with the death of the deceased and he
indicated to the police where he had buried the body of the deceased.
The body of the deceased was exhumed and taken for a post mortem
examination which showed that the cause of death was a compound
comminuted skull fracture as a result of assault.
The
appellant was charged with the offence of murder, convicted and
sentenced to death as already pointed out.
In
order for this Court to quash the conviction and sentence of the
appellant, there had to be a misdirection apparent from the record
sufficiently serious to vitiate the proceedings of the court a
quo.
Accordingly, I shall examine below whether the court a
quo
erred in any one or more of the following respects-
(i)
In finding the testimony of the appellant as not credible.
(ii)
In finding that the appellant did not act in self- defence.
(iii)
In concluding that the appellant killed the deceased with actual
intent, and
(iv)
In imposing the death penalty upon the appellant.
CREDIBILITY
OF THE APPELLANT
The
appellant was found by the court a
quo
to be an unreliable witness as he gave different and, at times,
conflicting accounts of the circumstances leading to his striking the
deceased with the axe. Firstly, he told the court that it was because
the deceased had sodomised him. On being probed he stated that he had
killed the deceased in self-defence. Even with regards to the weapon
used he stated that he killed the deceased with a metal rod only to
change under cross-examination and say he used to an axe. This part
of the appellant's evidence was carefully analysed by the learned
Judge in the court a
quo
as follows:
“We
find that the Accused's evidence was full of inconsistencies. For
example in his evidence-in-chief he stated that the reason why he
killed the deceased was because he was refusing his money (for wages
and painting). And that he felt that the deceased was responsible
for the semen he found on his thighs. But when they probed him
further, he stated that he struck the deceased because his (own) life
was under threat. In his evidence-in-chief he states that he used a
metal rod to strike at the deceased but under cross-examination he
stated that it was an axe.”
Now,
the test to be applied before a court rejects the explanation given
by an accused person was set out by GREENBERG J
in
R
v Difford
1937
AD at 373 and quoted with approval in S
v Chidunga SC
21/02 as follows:
“No
onus
rests on the accused to convince the court of the truth of any
explanation he gives. If he gives an explanation even if that
explanation is improbable, the court is not entitled to convict
unless it is satisfied, not only that the explanation is improbable,
but that beyond any reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
entitled to his acquittal.”
The
above test was aptly applied by the learned trial Judge as he came to
the conclusion that the appellant was an evasive witness who could
not be believed. It is trite that a superior court does not lightly
interfere with the findings of a lower court on the issue of
credibility. See S
v
Bezuidenhout
SC
122/02. In Kombayi
v
Berkhout
1988 (1) ZLR 53 (SC) at 59D KORSAH JA stated this principle, thus:
“Where
the question on an appeal from the decision of a judge is one of
credibility... an appellate court would be loathe to reverse the
conclusions arrived at by the trial judge, who had seen and heard the
witnesses, unless it is clearly demonstrated that he had fallen into
error.”
In
this case the conclusion by the court a
quo
is a result of a fair and balanced assessment of the evidence which
this Court cannot lightly interfere with. There are other instances
in the case where the appellant clearly lied which further dented his
credibility. For example, he initially claimed to the police that the
deceased had gone to Victoria Falls and had given him the property to
sell before revealing that he had killed and buried the deceased. His
assertion that he had been instructed by the deceased to sell the
household goods and that the deceased had communicated with the buyer
to that effect was firmly refuted by the unchallenged and credible
evidence of the buyer, Leonard Ncube, who stated that the appellant
had approached his firm, Phoenix Security, in his individual capacity
and signed for the sold property as the legal owner and that the
deceased had never communicated with his firm.
In
the light of the above, the court a
quo
rightly rejected the appellant's version of events and held that
the appellant struck and killed the deceased on 9 November 2002,
looted and sold his household goods.
DID
THE APPELLANT ACT IN SELF DEFENCE?
The
main basis of the appellant's defence was that he had killed the
deceased to save his own life from an imminent lethal attack by the
deceased. The appellant's version of events was that the deceased
wanted to shoot him and also strike him with a metal rod, so he then
countered the “attack” by striking the deceased with an axe twice
on the back of the head. The appellant's account is so riddled with
improbabilities that the court a
quo
did not hesitate to reject it. How does a man armed with a lethal
firearm on one hand also brandish a metal rod on the other hand? To
achieve what? To shoot and then strike or strike and then shoot? The
combination of weapons is just bizarre. Secondly, as the court below
noted, it is well-nigh impossible to strike a person who is about to
shoot you on the back of his/her head as alleged by the appellant.
The
requirements of self-defence are well-settled in our law. Section
253 of the Criminal Law (Codification and Reform) Act lists the
requirements as-
(i)
There must be an unlawful attack;
(ii)
The attack must be upon the accused or a third party;
(iii)
The attack must have been commenced or imminent;
(iv)
The action taken by the accused must have been necessary to avert the
attack; and
(v)
The means used to avert the attack must be reasonable.
The
above requirements are cumulative and all must be satisfied before
the defence may succeed. However, the appellant's defence of self
defence founders miserably on the very first hurdle. The alleged
illegal attack is so improbable it can only be a figment of the
appellant's desperate imagination. Thus, the learned Judge properly
dismissed the defence and stated as follows:
“The
fact that the Accused used an axe which he obtained ... in the
servants' quarters, proceeded to strike an unarmed person on the
head twice and... buried him and thereafter looted his property
demonstrated beyond reasonable doubt that the accused intended to
kill the deceased. His evidence is therefore rejected.”
DID
THE APPELLANT HAVE ACTUAL INTENTION TO KILL?
The
appellant was the only witness, as the perpetrator, of the actual
occurrence of the crime and, thus, there is no direct evidence as to
his intention. However, Ms S
Ndlovu
for the respondent submitted, and in my view correctly so, that where
there is no direct evidence as to the intention of the accused such
intention can be inferred from the surrounding circumstances, as was
done in the case of S
v
Mugwanda
SC
19/02. In the present case the following circumstances are highly
suggestive of an actual intention to kill-
(a)
The nature and seriousness of the injuries inflicted as per the post
mortem report and the vulnerability of the part of the body, the back
of the head, to which the blows with an axe were directed. In
Learnmore
Judah Jongwe
v
The
State
SC
62/02
the learned CHIEF JUSTICE CHIDYAUSIKU CJ, stated that where an
accused aims several blows at a vulnerable part of the body, the
inevitable inference is that the accused must have intended to bring
about the death of the deceased by his actions or, at least, foresaw
the death of the victim as a virtual certainty.
(b)
After striking the deceased, the appellant as per his evidence rather
than render help to the victim who was still alive chose to visit his
house at the other end of town in Matshobana Township leaving the
deceased lying on the floor.
(c)
After killing the deceased the appellant buried him in a shallow
grave in secret, continued to occupy the house of his victim as if
nothing had happened and proceeded to loot and sell his household
goods. These actions are suggestive of murder with actual intent for
the purpose of robbing and benefitting from the deceased's
property.
Thus,
after taking into account the above circumstances cumulatively, the
court below did not misdirect itself in concluding that the appellant
killed the deceased with actual intent.
AD
SENTENCE
The
conviction of murder with actual intent being proper, it follows that
the sentence of death is proper too after the trial court's finding
that no extenuating circumstances existed which would have justified
the imposition of a sentence other than the death sentence.
In
the present case after the accused had been found guilty of murder
with actual intent, the trial Judge carried out an inquiry into
extenuating circumstances. Both counsel for the defence and the State
were in concurrence that there were no extenuating circumstances,
that there was nothing which lessened the appellant's moral
blameworthiness. The court a
quo
found likewise. At any rate, the existence or otherwise of
extenuating circumstances is a matter exclusively within the
jurisdiction of the trial court. In S
v
Mateketa
1985 (2) ZLR 248 (S) at 255D it was stated thus:
“The
principle is well settled that the question as to the existence or
otherwise of extenuating circumstances is essentially one for
decision by the trial court and that, in the absence of misdirection
or irregularity this court will not interfere with a finding that no
extenuating circumstances are present, unless it is one to which the
trial court could not reasonably have come.”
The
court a
quo's
conclusion that there are no extenuating circumstances cannot be
faulted and hence its sentence is proper.
CONCLUSION
The
appeal against both the conviction and sentence imposed is dismissed.
MALABA
DCJ: I
agree
GOWORA
JA: I
agree
Danziger
& Partners,
appellant's legal practitioners
Attorney-General's
Office,
respondent's legal practitioners
