CHITAKUNYE
JA:
This is an appeal against the whole judgment of the High Court
sitting at Bulawayo convicting the appellant of murder in
contravention of section 47(1)(b) of the Criminal Law (Codification
and Reform) Act [Chapter 9:23].
The
appellant was sentenced to 10 years imprisonment.
BACKGROUND
The
appellant was arraigned before the High Court facing a charge of
murder in contravention of section 47 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (the Code). It was
alleged that on 26 September 2018, at Atlas Mine, Esigodini, the
appellant shot and killed one Antony Prince Bvundura (the deceased).
The
State's case was that on the day in question, at approximately
23:00hrs, the appellant armed himself with two guns; a Voere Rifle,
Serial number P93912/249829 and a Taurus Revolver Serial number
QD579746. The appellant, in the company of a number of people armed
with various items such as machetes, axes, shovels, and picks, drove
his Toyota Land Cruiser motor vehicle to Atlas Mine where there was a
gold rush.
Upon
arrival at the mine, the appellant disembarked from his vehicle
carrying the two guns. He had the rifle in one hand and a bottle of
beer in the other, with the revolver tucked in his trousers by the
waist. He ordered the illegal artisanal miners he found on site to
leave the site, claiming that the mine belonged to him. The artisanal
miners complied and moved out of the pits with their tools. The
persons he had brought with him then moved into the pits vacated by
the dispersing miners.
The
deceased, who was one of the artisanal miners, also moved out of the
pits and began making his way off.
The
State's witness, Mkhulisi Sibanda, one of the artisanal miners
ordered to leave, testified that as the artisanal miners (miners)
were leaving the site, the appellant got into an argument with one
Mncebisi Mguni who had been ordered by the appellant to leave the
scene without his tools. Mncebisi was upset at the order to leave his
tools behind and started exchanging insults with the appellant.
Mncebisi was walking with one Mzingaye and the deceased.
It
was alleged that amidst that exchange the appellant fired one of his
guns in the direction of the three men, probably with the intention
of shooting Mncebisi. However, it was the deceased who was shot and
killed.
The
owner of Atlas Mine testified that both the appellant and miners he
found at the site were illegal miners he had tried to chase from the
mine to no avail.
The
appellant pleaded not guilty to the charge and stated that it was not
his intention to cause the death of the deceased.
He
stated that he was employed by Khalanyoni Ranch to safeguard against
vandalism of infrastructure, especially the roads, from illegal
artisanal miners.
On
the night in question, he received information that artisanal miners
were digging on a farm road in search of gold. He then drove to the
scene with the intention of chasing them away. The appellant admitted
that he was armed with the two guns. He stated that upon arrival at
the site, he parked his vehicle facing away from the place where the
gold mining was taking place. He disembarked and ordered the illegal
miners to vacate but they resisted and started throwing stones and
other unidentified objects at him.
Sensing
danger, he backtracked towards his vehicle.
As
he was backtracking, he stepped on a stone, slipped and the revolver,
which is self-cocking, fell to the ground. He abruptly picked it up
and, in the process, it accidentally discharged.
At
that moment he did not realise that a person had been shot and
killed.
The
appellant further stated that after the miners dispersed, he left the
scene.
He
therefore claimed that he lacked both the intention to discharge the
firearm and the intention to kill the deceased or anyone.
He
also denied being negligent in any way.
Upon
the production of a post-mortem report and hearing evidence from a
police forensic expert, it was common cause that the deceased died
from gunshot wounds inflicted by the appellant's gun on the night
in question. He was shot on the upper left arm and on the chest
resulting in the destruction of the heart.
The
major issue the court a quo had to grapple with was whether the gun
accidentally discharged or the appellant deliberately pulled the
trigger resulting in the fatal shooting.
The
consequence of either finding was to inform the determination of the
appellant's guilt or otherwise upon consideration of the
appropriate legal requirements for the offence charged.
The
court a quo, upon an analysis of the evidence and the demeanour of
those who testified, believed the State's version on the key issues
in question.
It
found the State's witnesses to be credible.
The
key witness, Mkhulisi Sibanda, was at the scene and his evidence was
that there was no resistance by the miners except for an exchange of
insults between Mncebisi and the appellant. This exchange was a
result of the appellant's discriminatory order for Mncebisi to
leave his tools behind whilst his fellow miners were allowed to take
their tools.
This
was the more probable cause of the deliberate shooting at Mncebisi
and his colleagues.
On
the other hand, the court a quo found the appellant's story to be
unbelievable and thus false on the ground, inter alia, that the
appellant gave contradictory evidence in his defence outline and in
his evidence in chief.
The
court a quo noted that in the defence outline the appellant stated
that upon ordering the miners to vacate, they attacked him. As a
consequence of the attack he backtracked towards his vehicle. In the
process he stepped on a stone, slipped and the revolver fell onto the
ground. He abruptly picked up the revolver resulting in its
accidental discharge.
In
his evidence in chief, on the other hand, the appellant testified
that upon ordering the miners to vacate they did not resist and did
not show any signs of violence. He was holding his rifle, a bottle of
beer, with the revolver tucked in his trousers by the waist. He did
not anticipate any violence and so he moved aside to relieve himself.
It was then that he heard some noise and torches were lit. Stones
were thrown at him. In a bid to avoid being hit by the stones he
retreated. As he was blinded by lights from torches, he stumbled and
fell into a pit. The firearm fell onto rubble which was stony. He
immediately tried to retrieve it and it discharged in the process. He
did not see where he touched it; all he noted was that the firearm
discharged in that process.
The
court a quo held, inter alia, that the appellant recklessly fired the
revolver at the three miners, who included Mncebisi, Mzingaye and the
deceased.
In
the circumstances he must have realised that there was a real risk or
possibility that his shooting at the trio might cause death. Despite
this realisation the appellant proceeded to shoot in the direction of
the trio who were going away. It was thus reckless of him to
discharge the firearm in the direction of the deceased and his
colleagues.
The
appellant was therefore convicted of murder in contravention of
section 47(1)(b) of the Code.
Consequently,
the court sentenced him to 10 years imprisonment.
Aggrieved
by the decision of the court a quo, the appellant appealed against
both conviction and sentence to this Court.
SUBMISSIONS
BEFORE THIS COURT
Ad
Conviction
In
motivating the appeal Mr Mpofu, for the appellant, submitted that the
court a quo erred at law by making findings contrary to the evidence
placed before it. He submitted that the postmortem report showed that
the bullet penetrated from the left yet the evidence before the court
a quo was that the deceased had been shot whilst fleeing. He averred
that if the deceased was shot whilst running away the bullet ought to
have penetrated from the back.
It
was his case that the burden of proof required in a criminal matter
is proof beyond reasonable doubt and as such the State ought to have
led expert evidence so as to clarify the possibility of the bullet
penetrating from the left in the circumstances.
He
also submitted that the court a quo erred in accepting the State's
evidence and rejecting the appellant's evidence.
On
the finding that the appellant's versions were contradictory Mr
Mpofu submitted that there was no contradiction at all.
The
defence outline was skeletal whilst the evidence in chief was the
fuller evidence.
He
thus sought that the appeal ought to succeed.
Per
contra, Mr K. Ndhlovu, for the respondent, submitted that the
evidence which was placed before the court a quo ought to be looked
at holistically. He submitted that the evidence led established that
the appellant was never under attack and did not fall into a pit as
he was now contending in his evidence in chief.
Counsel
further submitted that the appellant's version was proved not to be
true. The court a quo did not err in convicting the appellant as it
did.
Counsel
also submitted that the court a quo made findings of fact and
credibility which aspects the appellant has not alleged or shown to
be in defiance of logic or inconsistent with the evidence adduced as
per the record of proceedings. In fact, nothing has been advanced by
the appellant to show that the findings of fact were wrong.
Regarding
the issue of intention, counsel submitted that the evidence showed
that whilst the appellant may have intended the shot for Mncebisi
whom he was exchanging insults with, he must have been aware of the
real risk or possibility of shooting any other person, including the
deceased who was close to Mncebisi as the trio were moving away. The
appellant would have been aware of the risk or possibility of hitting
the deceased but he nevertheless proceeded to discharge the revolver
in the direction of the trio. In the circumstances he intended the
consequences that came as a result of his conduct.
APPLICATION
OF THE LAW TO THE FACTS
Although
the appeal raises several grounds of appeal there is only one issue
for determination that is whether the court a quo erred in convicting
the appellant from the evidence adduced.
Section
47(1)(b) of the Code under which the appellant was convicted states
that:
“(1)
Any person who causes the death of another person -
(a)……
(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.”
The
test for ascertaining the state of mind under para (b) is provided
for in section 15 of the Code as follows:
“(1)
Where realisation of a real risk or possibility is an element of any
crime, the test is subjective and consists of the following two
components -
(a)
a component of awareness, that is, whether or not the person whose
conduct is in issue realised that there was a risk or possibility,
other than a remote risk or possibility that -
(i)
his or her conduct might give rise to the relevant consequence; or
(ii)
the relevant fact or circumstance existed when he or she engaged in
the conduct; and
(b)
a component of recklessness, that is, whether, despite realising the
risk or possibility referred to in paragraph (a), the person whose
conduct is in issue continued to engage in that conduct.”
In
instances where death is not of the targeted person section 57 of the
Code provides that:
“If
any person -
(a)
does or omits to do anything in relation to another person which, if
it caused that other person's death, would constitute murder,
infanticide or culpable homicide; and
(b)
by the conduct referred to in paragraph (a), causes the death of
someone other than his or her intended victim; he or she shall be
guilty of the following crimes -
(i)
…
(ii)
in respect of the person whose death he or she has actually caused -
(a)
murder or infanticide, as the case may be, if he or she realised that
his or her conduct involved a real risk or possibility of causing the
death of someone other than his intended victim; or
(b)
culpable homicide, if the requisites of that crime are satisfied.”
One
would, therefore, not escape liability simply because they ended up
killing the wrong person.
What
is of importance is to ascertain if all the essential elements have
been proved beyond a reasonable doubt irrespective of the identity of
the victim.
It
is trite that there are four basic essential elements that must be
proved to sustain a conviction of murder. These are:
(i)
causing death of;
(ii)
another human being;
(iii)
unlawfully; and
(iv)
intentionally.
The
first three essential elements were accepted as common cause. The
appellant caused the death of the deceased and this was unlawful as
there was no lawful justification for it.
The
contentious issue was on whether the appellant had the requisite
intention to cause the death.
It
is in this respect that at the end of the trial the court a quo found
that the appellant was reckless in that despite the realisation that
there was a real risk or possibility of causing death by discharging
a lethal firearm in the direction of the trio (Mncebisi, the deceased
and Mzingaye) he, nevertheless, proceeded to discharge the firearm in
that direction. He thus intended the resultant consequence. He is
therefore guilty in terms of section 47(1)(b) of the Code.
This
appeal is essentially premised on that finding. The appeal mainly
challenged the findings of fact made by the court a quo and the
findings on credibility.
In
S v Mlambo 1994 (2) ZLR 410 (S) p413, GUBBAY CJ stated that:
“The
assessment of the credibility of a witness is par excellence the
province of the trial court and ought not to be disregarded by an
appellate court unless satisfied that it defies reason and common
sense.”
In
discussing circumstances under which an Appellate Court may interfere
with the findings of credibility of a witness by a lower court in
Gumbura v The State SC78-14 p7 PATEL JA (as he then was) stated as
follows:
“As
regards the credibility of witnesses, the general rule is that an
appellate court should ordinarily be loth to disturb findings which
depend on credibility. However, as was observed in Santam BPK v
Biddulph (2004) 2 All SA 23 (SCA), a court of appeal will interfere
where such findings are plainly wrong. Thus, the advantages which a
trial court enjoys should not be overemphasised. Moreover, findings
of credibility must be considered in the light of proven facts and
probabilities.”(my emphasis)
I
am of the view that in the present case there is no basis for
interfering with the court a quo's findings on credibility of State
witnesses.
The
evidence on record tends to support such findings.
The
court a quo believed the evidence of the State witnesses and found
that the defence given by the appellant in the court a quo had
irreconcilable contradictions and inconsistencies.
The
crux of the appellant's defence was based on his version of events
that the firearm accidentally discharged. The irreconcilable
contradictions and inconsistencies regarding how the firearm
discharged was thus fatal to his case.
As
already noted above, the appellant's defence outline was to the
effect that upon arrival at the scene and ordering the miners to
vacate, they resisted by attacking him from the onset. Sensing danger
he backtracked towards his vehicle, stepped on a stone, slipped and
the firearm fell down. As he was in the process of picking up the
firearm it accidentally discharged thereby shooting and killing the
deceased person.
In
the evidence in chief, he testified that upon arrival he ordered the
miners to vacate and there was no resistance. The situation was such
that he did not anticipate any violence. He then went aside to
relieve himself. It was at that juncture that he then heard some
noise. Stones and other objects were now being thrown at him. He
retreated towards his vehicle and, in the process as he was blinded
by light from torches, he stumbled and fell into a pit that was knee
deep. The firearm fell onto a rubble which was 'stoney'. He
immediately tried to pick it up and it accidentally discharged.
The
submission by Mr Mpofu that there are no contradictions but that the
appellant gave a skeleton defence in the defence outline which was
later developed in the evidence in chief lacks merit.
The
purpose of a defence outline is to inform the State and the court
about the nature of the defence that one intends to adopt as well as
to define the issues between the State and the defence.
This
principle was emphasised in the case of S v Hitschmann SC2-07 p5:
“The
purpose of a defence outline is, basically, to provide an accused
person with the opportunity to explain his attitude in relation to
the charge he is facing, or to indicate the basis of his defence.”
See
also Magodo v The State SC25-03 and section 66(6)(b) of the Criminal
Procedure and Evidence Act [Chapter 9:07].
In
casu, the defence outline was clear that there was resistance from
the onset upon ordering the miners to vacate. In terms of his
evidence in chief there was no resistance at the onset; resistance
only arose after he had gone aside to relieve himself.
This
latter version by the appellant on the initial reaction of the miners
is consistent with the State's evidence that there was no
resistance at the outset from the miners upon being ordered to
vacate.
It
thus corroborates the State's evidence on this aspect.
Mkhulisi
testified that after the appellant ordered the miners to vacate, they
complied. He also stated that the contention only arose when Mncebisi
was ordered to leave his tools in the shafts. That is when Mncebisi
started arguing with the appellant in an attempt to retrieve his
tools. Unable to retrieve his tools, Mncebisi began making his way
off exchanging insults with the appellant. It was the witness's
testimony that this exchange of insults was probably what caused the
appellant to shoot in Mncebisi's direction, who was in the company
of the deceased and Mzingaye.
The
witness testified that as the gunshot was fired during the exchange
of unpalatable words between the appellant and Mncebisi, it was most
probably intended for Mncebisi but it missed him and landed on the
deceased.
Upon
examining the events, the exchange of unpalatable words may indeed
have been the cause for the shooting and since this exchange was
between these two protagonists the shot could have been aimed at
Mncebisi.
The
court a quo cannot be faulted for accepting this witness evidence as
credible.
Further
improbabilities were also noted in the appellant's evidence.
The
appellant testified that when he arrived at the scene, he parked his
vehicle with lights facing away from the direction of the miners.
Such parking would not have enabled the miners to see that he was
armed.
This
version of events was held to be highly improbable.
It
is highly unlikely that the appellant would go to the scene to assess
the damage being done to the road and park the car with the lights
facing away from the very damage he was there to assess. It is
therefore more believable that the lights were facing the miners as
was testified to by Mkhulisi.
Further,
I find merit in the court a quo's finding that the appellant parked
the vehicle with lights facing the miners, because Mkhulisi was able
to see that the appellant was armed with two firearms; a rifle in his
hand and a revolver tucked in his trousers by the waist.
The
appellant accepted that Mkhulisi saw the firearms.
At
about 23:00 hours at night, the witness could not possibly have seen
the revolver if there was no light.
It
is therefore difficult to believe that the miners, armed with digging
tools only would have dared attack the appellant who was visibly
armed with two lethal firearms. It would have been a 'suicide
mission' as the court a quo so eloquently put it.
The
evidence by the appellant that the revolver fell down when he slipped
or fell into a pit was rejected by the court a quo in preference to
the State's evidence that the firearm did not drop down and the
appellant did not fall at all.
It
was not disputed that when given the opportunity to make indications
at the scene, the appellant declined.
The
indication could have helped in establishing the place where he
alleged the firearm dropped to the ground and the pit he fell into as
well as the stones allegedly thrown at him by the miners.
Another
improbability noted from the appellant's evidence is that he could
not explain how the firearm that discharged as he was picking it up
from the ground would have discharged at such an angle or trajectory
as to hit the deceased on the upper part of the body since the
deceased was on his feet.
Equally
he could not explain how after he fell into a pit, as per his second
version, the bullet from a firearm he was picking therefrom would
strike deceased in the upper part of the body. The failure to explain
how the bullet could have hit the deceased on the upper part of the
body when the appellant was picking it from the ground or the pit
leaves the State's evidence that the appellant deliberately fired
the firearm in the direction of Mncebisi as the only plausible or
credible explanation.
The
conclusion that there was no accidental discharge cannot, in the
circumstances, be faulted.
The
inconsistencies and improbabilities evident from the appellant's
testimony are such that his version cannot be true. As a result, the
court a quo cannot be faulted for believing the respondent's
version of events of what transpired on the fateful day over the
appellant's version.
The
conclusion that the appellant was reckless in firing the firearm in
the direction of Mncebisi and others in his company is sound.
The
circumstances were such that he ought to have realised that there was
a real risk or possibility of hitting someone and thus causing their
death. Despite that realisation he proceeded to discharge the lethal
firearm towards Mncebisi and company.
I
therefore find that there is nothing warranting this Court's
interference with the verdict of the court a quo.
Ad
Sentence
Though
the appellant raised one ground of appeal against sentence, this
ground was not persisted with. Counsel for the appellant submitted
that he had difficulties in formulating any argument against the
sentence imposed.
The
respondent's position was that the sentence was appropriate
considering the circumstances of the case.
It
is trite that the issue of an appropriate sentence is within the
discretion of the trial court.
An
appellate court will not lightly interfere with the sentence of the
trial court unless it is established that the discretion was not
judiciously exercised; that is, the sentence is vitiated by
irregularity or misdirection or is so severe as to induce a sense of
shock: S v Mundowa 1998 (2) ZLR 392 at 395B-E.
It
is clear that nothing has been placed before this Court warranting
interference with the sentence imposed by the court a quo.
DISPOSITION
The
appellant lamentably failed to show that the court a quo erred in its
assessment of the evidence placed before it and in convicting the
appellant as it did. Equally the sentence was not shown to be
inappropriate in the circumstances.
The
entire appeal has no merit.
Accordingly,
the appeal against both conviction and sentence is hereby dismissed.
GWAUNZA
DCJ: I agree
MWAYERA
JA: I agree
Mutendi
Mudisi & Shumba, appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
