PATEL
J:
The
accused is charged with the murder of a farmer, Charles Anderson, on
the 2nd
of June 2002 at Norfolk Farm, by shooting him in the head with an AK
rifle. The accused denies shooting the deceased and states that it
was his accomplice, Benedict Makumbe, who shot the deceased.
Admissions
At
the trial of this matter, the State produced a forensic ballistics
report, prepared by Chief Inspector Jeka on the 21st
of June 2002. This was admitted with the Defence's consent as
Exhibit 1.
The
report confirms that the AK rifle used to shoot the deceased was
functional. It also confirms that the five cartridges, one spent
bullet and one bullet jacket, which were uplifted from the scene of
the shooting, emanated from that rifle.
The
State was unable to locate the post
mortem
report compiled for the purposes of this case. However, what was made
available at a later stage and admitted by consent, as Exhibit 4, was
the relevant Form 231 (application for post
mortem
examination) which concludes that the cause of death was a rifle shot
to the head resulting in brain damage and haemorrhage.
The
evidence of the following State witnesses, as outlined in the State
Summary, was also admitted with the consent of the Defence:
(a)
Cindy Anderson.
(b)Edmore
Mapuranga.
(c)
Jackson Ngandu.
(d)
Detective Constable Mandeya.
(e)
Detective Inspector Wakatama.
(f)
Chief Inspector Jeka.
(g)
Doctor Mapunda.
State
Evidence
Michael
Tom
The
witness was employed by the deceased as a gardener. On the 2nd
of June 2002, he was working in the garden at Norfolk Farm when he
was approached by the accused and his accomplice. The accused pointed
a firearm at him and told him to raise his hands. (The witness
identified an AK rifle – GM 5565/ZA 43271 – as being the weapon
in question and this was admitted by consent as Exhibit 2).
The
accused then ordered Tom to follow him to the front of the farmhouse.
He was told to lie down and was covered with a blanket. The accused
gained entry through an open window, while his accomplice remained
outside. The accused then returned with the cook, Edmore Mapuranga,
and opened the front door.
Inside
the farmhouse all four men proceeded through the passage into various
rooms within. Tom and the cook were asked to lie down at various
stages, while the accused and his accomplice gathered diverse items
of clothing, a cash box, a television set and some cassettes. At one
stage, the accused threatened to shoot Tom and the cook but was
restrained by his colleague.
When
they were about to leave the farmhouse, the deceased arrived in his
motor vehicle and called for Tom. The accused declared that he would
shoot the deceased if he came into the house. The cook and Tom were
again ordered to lie down under blankets in the main passage. They
were being watched over by the accomplice, while the accused waited
with his firearm in a toilet adjoining the passage.
The
deceased then came into the house through the front door and entered
the passage. The accused emerged from the toilet and shot at the
deceased three times. At that point, the deceased fell to the floor.
When questioned by his colleague, the accused confirmed that the
deceased had probably died. Tom managed to peep through the blanket
covering him and personally witnessed the accused shooting the
deceased.
The
accused retained control of the firearm at all times and appeared to
be in charge of his accomplice. At no point did the accused hand the
rifle over to his accomplice.
After
the deceased was shot, Tom and the cook were told to carry the bags
of loot outside. The deceased's rifle was lying near a hedge and
the accused took it and slung it over his shoulder. (The witness
identified the rifle, a Parker Hale Safari Deluxe A1075M, and this
was admitted by consent as Exhibit 3).
The
deceased's wife and young children were standing outside. The
accused asked the deceased's wife for keys to a motor vehicle. She
identified a red pick-up truck with its keys already in it. The bags
of loot and the deceased's rifle were placed in the back of the
truck. The accused kept his own rifle and proceeded towards the front
gate. The accomplice told Tom and the cook to get into the back of
the truck. He then drove up to the gate where the accused was
waiting. However, he did not stop at the gate but drove on leaving
the accused waving and running behind the truck.
At
some distance of about 2 to 3 kilometres away from the Norfolk
farmhouse, the truck overturned. All three men disembarked from the
vehicle and dispersed in different directions.
Ngoni
Masoka
This
witness was the Permanent Secretary responsible for lands at the
relevant time. On the 2nd
of June 2002, he was driving in the vicinity of Norfolk Farm when he
saw the accused on the road running frantically and holding a
firearm. The accused claimed to be a guard at the Norfolk Farm
homestead and said that there had been a robbery. He asked whether
Masoka had seen a red truck and said that this was the truck that had
been used by the robber. Masoka confirmed that he had seen the
vehicle and asked about the owner of Norfolk Farm. The accused
responded to say that the owner was in Bindura.
The
accused requested Masoka to turn back and ferry him to follow the
robbers. Masoka complied and drove along the road for about 3
kilometres until they arrived at the spot where the red truck had
recently overturned. After looking around the area, the accused asked
Masoka to take him to the Chiweshe area where the alleged robber
would be found. When they approached Chiweshe Village, the accused
pointed to a hut and said he wanted to accost the robber in that hut
and proceeded in that direction.
He
did not return.
After
waiting for 15 to 20 minutes, Masoka drove back to the scene of the
accident. Michael Tom had returned to the scene and explained what
had transpired at Norfolk Farm.
(In
court, the witness identified the AK rifle, Exhibit 2, as being the
firearm that was carried by the accused. He also positively
identified the accused as the person he saw on the day in question.
He was wearing blue denim jeans on that day).
Peter
Ngandu
On
the 2nd
of June 2002, at Midzi Village in Chiweshe, he saw a visitor, the
accused, talking to his brother, Jackson Ngandu. When questioned as
to his identity, the accused became aggressive and assaulted his
brother with a rifle magazine. Ngandu intervened and the firearm fell
out of the accused's hands. A lengthy scuffle ensued between the
accused and the Ngandu brothers. They eventually managed to overpower
him and tied him up with a rope. Someone was then sent to call the
police from Gweshe Police Post.
(The
witness positively identified the accused in court and stated that
the latter wore blue jeans on the day in question. He also identified
the AK rifle, Exhibit 2, and its magazine as being the firearm in the
accused's possession on that day).
Detective
Sergeant Joseph Nemaisa
The
witness has been an attested member of the Zimbabwe Republic Police
for a period of 8 years. On the 2nd
of June 2002, he received a report of a murder having been committed
at Norfolk Farm. He proceeded to the farm in the company of three
other police officers.
At
the farmhouse, they were first directed to the overturned red truck.
At the scene of the accident, he observed the Nissan truck and met
and interviewed the deceased's workers, Michael Tom amd Edmore
Mapuranga. They said that the deceased had been shot and identified
his assailant as wearing a green wet-suit top. Nemaisa recovered the
stolen goods and the deceased's rifle from the truck.
At
the farmhouse, the deceased's body was identified, lying in a thick
pool of blood at one end of the corridor. Nemaisa observed two holes,
one large and the other small, in the deceased's head. He picked up
about four or five spent cartridges and one unfired bullet and sealed
them in a packet.
From
what Nemaisa observed within the farmhouse, both Tom and Mapuranga
would have been able to witness the shooting of the deceased at the
other end of the corridor from where they were told to lie down.
Nemaisa
then proceeded towards the Chiweshe Communal Area. At Gweshe Shopping
Centre, he found the accused being held by the Ngandu brothers and
others. They handed over the AK rifle and magazine recovered from the
accused. The accused was carrying a green wet-suit top and wore a
striped shirt and blue jeans.
The
accused said that he and his accomplice had robbed the AK rifle
approximately two weeks before from an unknown motorist who had given
them a lift. According to Nemaisa, this rifle was previously reported
as having been robbed from the then Minister of Home Affairs John
Nkomo's driver. The driver subsequently identified the AK rifle as
belonging to him as well as some of the items that he had been robbed
of and which had been recovered from the accused.
On
the 18th
of June 2002, he handed over the two firearms and the spent
cartridges for forensic examination. The forensic ballistics report
confirmed that the spent cartridges had been fired from the AK rifle
recovered from the accused.
(In
court, the witness positively identified the AK rifle, Exhibit 2, as
the rifle handed over to him at Gweshe as well as the relevant
ballistics report, Exhibit 1. He also identified the deceased's
rifle, Exhibit 3, as the firearm recovered from the Nissan truck).
Other
State Witnesses
At
the end of the State case, it was indicated that Cindy Anderson, the
deceased's wife, had relocated to Australia and the State was
unable to meet the cost of her air travel to and from Zimbabwe for
the purposes of testifying at this trial.
As
for Edmore Mapuranga, the deceased's erstwhile cook, he was said to
be somewhere in the Guruve area but could not be presently located.
Jackson
Ngandu was not called to testify, even though he was available, in
view of the fact that his evidence would have been substantially the
same as that given by his brother, Peter Ngandu.
Counsel
for the State noted that the evidence of all three witnesses, as
outlined in the State Summary, had been accepted and admitted by
consent at the beginning of the trial.
Assessment
of State Evidence
Michael
Tom was the principal witness for the State. He gave his evidence in
great detail and remained clear and consistent throughout his
testimony. He was not discredited under cross-examination nor when he
was questioned by the Court.
His
evidence was amply corroborated by that of the other State witnesses
who gave evidence in court. It is also corroborated by the evidence
of Cindy Anderson and Edmore Mapuranga, which was admitted by consent
as outlined in the State Summary. The Court found Michael Tom to be a
very credible and reliable witness.
As
regards the evidence of Ngoni Masoka, Peter Ngandu, and Joseph
Nemaisa, the Court was also impressed by the clarity and consistency
of their evidence. Their testimony was not meaningfully challenged or
countered under cross-examination. They too proved to be credible and
reliable witnesses.
However,
the Court notes that Nemaisa's evidence as to the manner in which
the accused came to be in possession of the AK rifle, viz. by robbing
it from Minister Nkomo's driver, is essentially hearsay. It must
therefore be disregarded for present purposes.
Defence
Evidence
Munetsi
Kadzinga (the accused)
On
the 2nd
of January 2002, he was at his home in Bindura. He was approached by
his friend, Benedict Makumbe, who was carrying a black bag. Makumbe
asked the accused to accompany him to his mother's house in
Chiweshe to collect some maize.
En
route to Chiweshe, Makumbe opened his bag and produced a firearm. He
said that it had no bullets and that he had obtained it from Minister
Nkomo's driver. He also said that the Minister and other
“superiors” had assigned Makumbe and the accused to threaten and
frighten away the white farmers in the Chiweshe area.
The
accused did not refuse to comply because he thought that Makumbe
would use the firearm against him.
At
a later stage along the way, Makumbe told him that they were going to
Norfolk Farm in order to rob the homestead. The accused assumed and
believed that Minister Nkomo had instructed Makumbe to carry out the
planned robbery.
Upon
arrival at Norfolk Farm, they found the gardner outside the
farmhouse. Makumbe told the accused to hold the rifle and smashed a
window pane to gain entry into the house. All three men went into the
house through the broken window. Once inside, Makumbe demanded the
rifle back from the accused. They then found the cook and both he and
the gardener were ordered to lie down. Makumbe told the accused to
collect blankets, items of clothing and a television set. The accused
proceeded to do so.
Whilst
the accused was in one of the rooms where the workers had been
ordered to lie down, he heard Makumbe shout “hands up” and he
then heard three gunshots. A short while later, Makumbe came into the
room carrying two rifles. He handed over the second rifle to the
accused. Makumbe said he had shot the deceased because he had failed
to put his hands up. The accused did not see the deceased's body.
Makumbe
then ordered the gardener and the cook to carry the loot and load it
into a red Nissan truck. The accused placed the second firearm into
the back of the truck. Makumbe and the accused sat in the front of
the vehicle, while the two workers sat in the back. At the front
gate, Makumbe gave the accused the AK rifle and told him to open the
gate. Once the accused had opened the gate, Makumbe did not wait but
drove off and the accused gave chase.
Whilst
he was giving chase, he encountered a green motor vehicle being
driven by one man (Ngoni Masoka). The latter agreed to pursue the red
truck which they soon found overturned about 3 to 4 kilometres away.
There was no one at the scene of the accident. The accused told
Masoka that the thief usually frequented his mother's house in
Chiweshe. The accused then walked towards Chiweshe on his own.
At
Gweshe Village he was confronted by two men who asked where he was
going. The accused was holding the rifle covered beneath his jacket.
The two men asked him to show what he was holding. As he was about to
uncover the rifle, they began assaulting him. A struggle ensued and
the accused was felled to the ground. The two men then tied him up
with a rope and took him to Gweshe Police Base at the Gweshe Shopping
Centre.
At
the Shopping Centre, the accused was handed over to the police. One
of the police officers (Joseph Nemaisa) struck the accused thrice on
his head with the AK rifle butt. He was then restrained by one of his
colleagues. The accused was subsequently handcuffed and taken to
Bindura Hospital to treat the head injuries he had sustained.
At
Bindura Police Station the following morning the accused told the
police officers that Makumbe had killed the deceased. The officers
threatened and assaulted the accused and tortured him with electric
rods. The accused eventually succumbed and admitted to killing the
deceased because he was in great pain.
Under
cross-examination, the accused accepted that when he was first shown
the firearm by Makumbe they were still about two to three hours away
from Norfolk Farm. However, he did not attempt to escape because he
was afraid of being shot by Makumbe, even though the latter was his
childhood friend.
Again,
when Makumbe handed the AK rifle to him at Norfolk Farm, both before
and after the robbery, he did not take flight because he was afraid
of Makumbe and of being reported to Makumbe's superiors.
For
the same reasons, he did not think of reporting the robbery to the
nearest police station, either in Gweshe or in Bindura. He also did
not tell Masoka the truth because he panicked at that time.
When
questioned by the Court, the accused stated that he had lied to
Masoka in order to obtain his assistance to look for Makumbe. At that
stage, he said he was no longer afraid of confronting Makumbe. As
regards Makumbe's conduct at Norfolk Farm, the accused was totally
unable to provide any satisfactory explanation as to why Makumbe
should have handed the AK rifle to him, initially when they arrived
at the farm, and later when they were leaving through the front gate.
Assessment
of Accused's Evidence
The
accused contradicted himself in several crucial respects,
particularly under cross-examination and when questioned by the
Court. Equally significantly, he failed to provide the Court with any
credible explanation as to his state of mind, motivation and conduct
before during and after the admitted robbery.
Throughout
the trial proceedings, the accused gave the impression of a witness
who had fabricated his version of events beforehand and who was
constrained to modify it as his testimony progressed in response to
probing questions. The Court found the accused to be a thoroughly
unsatisfactory witness and rejects his version of what transpired on
the day in question as being extremely implausible and incredible.
Uncontested
Evidence
As
already indicated, the State was unable to locate the post
mortem
report compiled in respect of the deceased. However, the fact of his
death and the cause thereof are not in dispute and were admitted by
consent in terms of section 314(1) of the Criminal Procedure and
Evidence Act [Chapter
9:07].
These facts were also established by dint of the contents of Exhibit
4 and the evidence of Detective Sergeant Nemaisa.
Similarly,
there is no dispute as to which firearm was used to shoot the
deceased. The AK rifle, Exhibit 2, was clearly identified as being
the weapon in question through Nemaisa's evidence and the findings
contained in Exhibit 1. It was further identified through the chain
of evidence given by Michael Tom, Ngoni Masoka, Peter Ngandu and
Joseph Nemaisa.
The
evidence of Cindy Anderson, Edmore Mapuranga and Peter Ngandu, as set
out in the State Summary, was also admitted by consent. Their
evidence as outlined must therefore be taken as being uncontradicted.
As
appears from the State Summary, the evidence of Cindy Anderson
corroborates that of Michael Tom as regards the events that took
place outside the farmhouse when the deceased was shot and
immediately thereafter. The evidence of Edmore Mapuranga would have
been materially similar to and corroborative of Michael Tom's
evidence, while the evidence of Jackson Ngandu is virtually the same
as that of Peter Ngandu.
The
Court's Findings
It
is clear from the evidence adduced at the trial that the accused and
his accomplice, Benedict Makumbe, went to Norfolk Farm on the fatal
day with the common purpose of committing a robbery at that farm. It
is also clear that the accused was armed with an AK rifle loaded with
ammunition.
As
already stated, the accused's version that he was coerced into this
enterprise by Makumbe, who was acting on so-called superior
instructions, is exceedingly difficult to accept.
If
what the accused alleges were true, he had ample opportunity to
escape from Makumbe not only on their way to Norfolk Farm but also at
the farm itself when he was allegedly given the AK rifle by Makumbe
on two separate occasions. Again, after the robbery, instead of
charging in hot pursuit after Makumbe and lying to Masoka as to his
reason for so doing, he could have reported the incident to the
nearest police authorities at the earliest opportunity. However, he
did none of these things and was unable to proffer any persuasive
explanation as to why he did not. In the event, the Court concludes
that his version of events is wholly unbelievable and must therefore
be rejected.
The
Court finds that it was the accused and not Makumbe who was in charge
of their joint venture. Although both of them might have planned and
agreed to commit the robbery, it was the accused who dictated and
directed their common purpose. More significantly, the accused
retained full control of the AK rifle in question throughout the
period under consideration and he was clearly prepared to use it in
the event that they met any resistance.
Having
regard to all the evidence before the Court, it is abundantly clear
that it was the accused who fatally shot the deceased.
The
clear and unequivocal testimony of Michael Tom that he personally
witnessed the accused shooting the deceased is entirely credible. The
Court is unable to perceive any reason why Tom should fabricate his
firm and unwavering identification of the accused as the person who
shot and killed the deceased. There was no suggestion or indication
before the Court of the possibility of false incrimination and
defence counsel quite properly conceded this point.
The
Court accordingly finds that the accused shot and killed the deceased
in the course of committing an armed robbery.
It
appears that the deceased might have carried his firearm with him
when he approached the farmhouse. However, it is not at all clear
from the evidence as to whether or not the deceased had his rifle in
hand when he was actually shot. What is unquestionably clear is that
the accused was armed with a lethal weapon. He waited in hiding for
the deceased to enter the farmhouse, fully prepared to shoot him as
and when he appeared. He did not attempt to warn or stop the
deceased. He deliberately shot the deceased in the head in what can
only be described as an act of cold-blooded murder.
Verdict
On
the evidence before it, the Court is satisfied that the accused's
guilt has been proven beyond any reasonable doubt. Accordingly, the
Court finds the accused guilty of murder with actual intent.
