CHAMBER
APPLICATION
BHUNU
JA:
[1]
This is an application for leave to appeal against the judgment of
the High Court (the court a
quo).
The applicant was convicted of murder with constructive intent and
sentenced to 10 years imprisonment. He applied for leave to appeal
before the court a
quo
without success. He now brings the application in terms of section 44
of the High Court Act [Chapter
7:06]
as read with Rule 20(1) of the Supreme Court Rules 2018.
BRIEF
SUMMARY OF THE CASE
[2]
The applicant was charged with murder in the court a
quo
as defined in section 47(1)(b) of the Criminal Law (Codification and
Reform Act) [Chapter
9:23].
He is alleged to have intentionally killed his wife Nyasha Mudzimu in
a feat of domestic violence. He pleaded not guilty to the charge but
offered a plea of guilty to the lesser charge of culpable homicide.
[3]
The facts leading to the deceased's death are by and large common
cause. It is common cause that on the night of 6 March 2020 the
deceased and the accused had a fight in their bedroom. Neighbours
intervened and quelled the commotion after hearing the now deceased's
screams.
[4]
The fight however broke out again after the neighbours had left. The
deceased bolted out of the bedroom with the accused hot in pursuit.
The deceased fell down. The accused continued to attack the deceased
while she lay on the ground. The deceased sustained serious head
injuries. She was hospitalised from 7 March to 6 April when she
succumbed to death due to the injuries.
[5]
The post-mortem report revealed the following facts:
(i)
The deceased was being managed for severe head injury from 7 March
2020 to 6 April 2020.
(ii)
The CT scan on the brain showed intra-cerebral haemorrhage due to
oedema.
(iii)
Head swelling and body bruises.
(iv)
Cause of death due to head injury.
[6]
The State case was that the accused was guilty of murder with
constructive intent because he continued to attack the deceased
realising that the attack might result in the deceased's death. It
was therefore the State's case that death was due to the assault.
[7]
On the other hand the accused admitted having caused the deceased to
fall by chasing after her but denied that it was the assault he
perpetrated on her that caused the fatal head injury. It was his
defence that the deceased sustained the injury when she fell and hit
her head on hard ground. He admitted that he was negligent in chasing
the deceased in the manner he did, hence the tender of a plea of
guilty to culpable homicide.
[8]
The applicant's defence is captured in his warned and cautioned
statement in which he says:
“We
fought and I overpowered her. We started when we were inside the
bedroom and she tried to run away. That is when I followed her
outside. Then she fell down and I hit her with open hands and kicked
her with booted feet. The neighbours then came and restrained us. I
never used any weapon against her. I never intended to kill her. It
was just a mistake and I did not intend to reach that extent.”
[9]
On those facts the court a
quo
found that it was improbable that the fatal head injuries were
sustained through a simple fall. It reasoned that a healthy young
lady was unlikely to die from a simple fall. It therefore concluded
as a matter of fact that the vicious assault that the applicant
perpetrated on the deceased probably caused the deceased's death.
THE
LAW
[10]
In terms of section 47(1)(b) murder with constructive intent is
committed when the accused persists with conduct which he realises
might cause his victim's death. The section provides as follows:
“47
Murder
(1)
Any person who causes the death of another person ?
(a)
intending to kill the other person; or
(b)
realising
that there is a real risk or possibility that his or her conduct may
cause death, and continues to engage in that conduct despite the risk
or possibility; shall be guilty of murder.”
[11]
Professor Feltoe in his book, Guide
to Criminal Law in Zimbabwe 2005
at p95 states that an accused person can only be convicted of murder
with constructive intent if the only reasonable inference that can be
drawn from the facts is that he had the legal intention to kill. In
drawing such inference the court decides that he must have and did
foresee the possibility of death.
[12]
In this case it is plain that apart from mere conjecture and
speculation there is no direct evidence establishing as to how the
deceased sustained the fatal injury. There are clearly three distinct
possibilities. Either she fell and hit her head against the ground
while fleeing from the applicant or the assault caused the fatal
injury or a combination of both the fall and the assault.
[13]
There was no evidence to corroborate the State's assertion that the
deceased sustained the fatal injury from the assault perpetrated on
her by the applicant. The post-mortem report is silent on how the
deceased sustained the fatal head injury. The court a
quo
therefore convicted the applicant by drawing the inference from the
proven facts.
[14]
In drawing that inference the court a
quo
had this to say at p5 of its cyclostyled judgment:
“On
the aspect of falling of the deceased,
it
is probable that the deceased could have fallen and injured herself,
but
it is inherently improbable that a healthy young woman would cause
herself such fatal injury simply from falling to the ground. In any
case the accused purposely pursued the deceased with the intention of
perpetrating further assaults. Had the deceased sustained serious
injury by falling, accused could not have embarked on assaulting her
on the upper part of her body. To
us it is far more probable that the injury on the head which caused
deceased's death was caused by stamping and kicking of accused
(sic). Accused also punched the deceased on the head using a fist."
(My italics).
[15]
It is self-evident from the above quotation that the court a
quo
made a specific finding of fact that it is probable that the deceased
could have fallen and injured herself while fleeing from the
applicant. That finding accords with the proven facts. The natural
consequence of which was to disable the court a
quo
from drawing assault as the only inference that caused the fatal
injury.
[16]
The law however requires that in the circumstances of this case, for
the accused to have been found guilty of murder with constructive
intent, death due to assault ought to have been the only reasonable
inference to be drawn from the proven facts. The court's specific
factual finding that death could be attributed to another cause
rendered the conviction of murder precarious on appeal.
DISPOSAL
[17]
Having regard to the court a
quo's
finding of fact that apart from the assault perpetrated on the
deceased by the applicant death can also be attributed to the
deceased falling down, I therefore can only find that the applicant
has good prospects of success on appeal. That being the case it is
accordingly ordered that:
1.
The applicant is granted leave to appeal against the decision of the
High Court under judgment number HMT/45/21.
2.
There is no order as to costs.
Bere
Brothers Legal Practitioners,
applicant's legal practitioners
The
Prosecutor General's Office,
respondent's legal practitioners
