PATEL JA:
The appellant in this matter was charged with two separate counts of attempted
murder and murder. On the first count, he was alleged to have struck his
twenty-two (22) year old wife once on the head with an axe, causing her to
sustain a depressed skull fracture of the right temporal region. On
the second count, it was alleged that the appellant struck his thirty-one (31)
year old sister-in- law twice on the head with an axe, thereby causing her
death.
In his warned-and-cautioned
statements, he admitted his guilt on both counts. Both statements were
subsequently confirmed before a magistrate. However, at his trial, he pleaded
not guilty to both counts. His defence was that he was motivated by anger
and provocation.
At the end
of his trial, the court a quo found the appellant guilty on the first
count of attempted murder following a concession by his counsel, properly made,
that he was so guilty. On the second count of murder, the court rejected
his defence of provocation and found him guilty of murder with actual intent.
The court did not consider or impose any sentence for the conviction for
attempted murder. As for the conviction for murder, the court appears not
to have addressed the question of extenuation, but proceeded nonetheless to
impose the sentence of
death.
It is abundantly clear from the
record that the State successfully established the requisite actus reus
and mens rea beyond a reasonable doubt in respect of both counts.
Counsel for the appellant and State counsel both duly accepted this
position. We fully agree and are unable to find any misdirection by the
court a quo as regards the convictions for attempted murder as well as
for murder with actual intent. The evidence founding conviction on both
counts was
overwhelming.
Moreover, there was no plausible
basis for the appellant's defence of provocation. Whatever fears that the
appellant might have entertained concerning his wife's infidelity or
promiscuity should have abated once he had been intimate with her a few hours
before he attacked her. As for his sister-in-law, the evidence shows that
she actually encouraged his reconciliation with his wife. The attack
perpetrated upon her, two days after the attack on his wife, was clearly
premeditated and deliberate. There is nothing in the evidence to show
that a reasonable person in the circumstances leading to both attacks would
have lost his self-control. See The State v Nangani 1982
(1) ZLR 150 (S) in this
regard.
Turning to the question of
extenuation in respect of the offence of murder with actual intent, the learned
judge a quo should have expressly addressed this aspect during the course
of the proceedings before him and in his judgment. The record is
absolutely silent in this regard. Be that as it may, as was correctly
submitted by both counsel on appeal, there are no discernible extenuating
circumstances in this case and the court a quo cannot be faulted for
imposing the death sentence on the evidence before it. There is nothing
in the record to show any facts which might be relevant to extenuation, for
example, immaturity, intoxication or provocation, which could have had a bearing
on the appellant's state of mind in doing what he did and which were
sufficiently appreciable to abate his moral blameworthiness. See in this
regard the test applied in Chingaona v The State SC 105/2002.
The sentence of death imposed with respect to the second count of murder
with actual intent must accordingly be
upheld.
As I have
already observed earlier, the learned judge a quo convicted the
appellant on the first count but omitted to impose any sentence for that
offence. His omission constitutes a clear misdirection that must be duly
rectified. The matter is not purely academic in light of the possibility
that the death sentence imposed in relation to the second count might never be
brought into effect, either by reason of executive inaction or by virtue of
presidential pardon.
In the
result, it is the unanimous decision of this Court that the automatic appeal
against conviction on both counts and against the sentence of death imposed on
the second count be and is hereby dismissed.
It is
ordered that the matter be remitted to the court a quo for it to hear
evidence in mitigation in respect of the conviction for attempted murder and
thereafter to determine and impose an appropriate sentence on the first count.
GWAUNZA
JA:
I agree.
GUVAVA
JA:
I
agree.
Majoko & Majoko, appellant's legal practitioners
Prosecutor-General's Office, respondent's legal practitioners
