MALABA
DCJ: On 30 January 2008 the
appellant appeared before the High Court in Gweru facing a charge of having
committed the crime of murder as defined in s 47 of the Criminal Law
(Codification and Reform) Act [Cap. 9:23]). The allegation was
that on 25 October 2006 at Mudzimundiringe River in Village 3 Radway Farm,
Chief Bvute, Mberengwa the appellant who was aged 18 years unlawfully and
intentionally killed Rosemary Mundaya aged 10 years.
After a full
trial, the appellant who pleaded not guilty was convicted of murder with actual
intent to kill and sentenced to death, the trial court having found no
extenuating circumstances.
On automatic appeal to the Supreme Court against both
conviction and sentence Miss Ncube, who represented the appellant
indicated after an initial attempt to discredit the conduct of the
identification parade that upon consideration of all the circumstances of the
case there was no misdirection committed by the court a quo in respect
of both conviction and sentence.
The facts
surrounding the commission of the offence were not in dispute. They can
be gleaned from the evidence of state witnesses who included three school
children Beatrice Shoko aged 5 years, Chidochashe Hove aged 9 years and Davison
Dube aged 13. All the three children together with the deceased Rosemary
Mbundaya attended at Mberengwa Primary School.
The evidence
of Davison Dube was to the effect that at about 1pm he left school in the
company of the deceased and her friend Christina Muyambo going to attend a road
show at a bus terminus where music was being played. When they got to the
road show he found the appellant dancing to the music.
They sat on
a car wreckage. After a while the appellant came to where they were and
asked the deceased where she lived. The deceased gave the appellant the
name of a village next to hers. When the appellant left he asked the deceased
why she had lied contrary to the instruction from the head teacher that they
should always tell the truth.
Davison said
the appellant returned and ordered him to leave the car wreckage. He did,
leaving the appellant talking to the deceased. At the end of the road
show adults were invited to pick booklets that were on offer. He saw the
appellant pick a booklet. The deceased told Christina that it was time
for them to go home but the latter said she was not yet ready to go home.
The deceased then left the road show going home.
Davison said
he had the appellant in sight for about 45 minutes at the road show. He
wore a bluish pair of trousers and put on a white t-shirt with vertical
stripes. The appellant wore a dreadlock hair style. Although the
appellant had now had his hair shaved off Davison was able to positively
identify him as the young may he saw at the road show amongst ten young men of
similar height who were lined up in an identification parade behind a building
at Mberengwa Police Station on 31 October 2006.
Davison
identified the appellant as the young man he had seen at the road show by his
face and clothing. The appellant was wearing a bluish pair of trousers
and putting on a white t-shirt with vertical stripes in the identification
parade. He was adamant that no one had assisted him with the
identification of the appellant.
It was his
evidence that he could not forget the appellant because he had had him in sight
for not less than 45 minutes on 25 October 2006. Davison denied the
allegation by the appellant that he had seen him in a police truck at Village 3
Radway Farm before the day of the identification parade. He also
vehemently denied the allegation by the appellant that they knew each other
from the village before the day of the road show. Davison said he saw the
appellant in a police truck after the identification parade.
It is common
cause that when the deceased left the road show going home she caught up with
Beatrice Shoko and Chidochashe Hove who had not been at the road show.
The evidence of Beatrice and Chidochashe was to the effect that soon after the
deceased joined their company they saw a young man following them. When
the young man came up to where they were he asked them which families they came
from. When they told him the young man went past them and walked in front
of them. As they got opposite a hill the young man turned and walked
towards them.
On getting
to where they were the young man made as if he wanted to go between them as
they also moved to the sides to give him way. He suddenly caught hold of
the deceased by the hand and dragged her into the bush towards the hill as she
screamed for help. The two girls ran home in fright and reported to their
parents that the deceased had been kidnapped by an unknown man.
Beatrice
said the young man they saw kidnap the deceased wore a pair of white shorts and
put on a white t-shirt. He wore a dreadlock hair style and was holding a
book. She picked the appellant at the identification parade on 31 October
2006 as the young man she had seen on 25 October. When asked how she was
able to identify the appellant as the offender in the identification parade
Beatrice said she recognized his face and the clothes. It was her evidence that
at the identification parade the appellant was wearing a pair of white shorts
and putting on a white t-shirt. She denied the allegation by the
appellant that she was able to identify him because she knew him as he used to
visit her brothers Limkani and Sparks. She vehemently denied that these
two young men were her brothers.
Chidochashe
also said the young man who kidnapped the deceased wore a dreadlock hair
style. She said he wore a pair of white shots and put on a blue
shirt. She also said she was able to pick the appellant at the
identification parade because he was still wearing the same clothes.
It is also
common cause that upon receipt of the report of her daughter having been
kidnapped Maybe Nyoni ran to the scene of the crime followed by her late
husband who was not feeling well. After searching the area near the hill
to no avail Maybe went to Mberengwa Police Station to report the disappearance
of her daughter. The police appear to have disbelieved her story and
dismissed her. She went back and joined other villagers in search for her
daughter.
The body of
the deceased was found lying on the river bank. The bluish pant the
deceased had been wearing when she went to school that morning was
missing. The skirt she had worn under the uniform had been removed and
tied tightly around her neck. The head had a skull fracture and four
blood stained big stones lay next to the deceased's head.
The matter
was reported to the police who were quick to attend the scene of the crime this
time. Kenias Razuwika who was the Officer-in-charge crime at Mberengwa
Police Station attended the scene of the crime at about 1750 hours on 25
October 2006. He observed that the deceased had a fracture on the left
side of the head. The left elbow was also fractured. There were
four blood stained big stones near the deceased's body. He took the
stones as exhibits.
The body was
not taken for a post mortem examination before 31 October 2006. At the
time the body was examined by a medical doctor at Mnene Hospital on 31 October
2006 it was already in the early stages of decomposition. It was no
longer possible to establish evidence of rape. The post mortem
examination report shows that the deceased had the following injuries -
fractures behind and above the right ear. There was dry blood in the
nostrils, face, mouth, lips and both ears.
The cause of death was found to be “cardio respiratory
arrest due to head injuries”.
There is no
doubt from the evidence of the commission of the offence that the person who
kidnapped and killed the deceased did so with the intention of bringing about
her death. The fact of the murderer having the specific intention to kill
the deceased is established by the evidence of the skirt which was tied tightly
around the deceased's neck to strangle her and the fractures of the skull
inflicted deliberately with blunt instruments.
It is also
common cause that in the night of 26 October 2006 the appellant was arrested at
number 53C – Mine in Mberengwa where he worked as a gold panner. It is also
common cause that on 31 October 2006 an identification parade in which
appellant participated was organized and conducted at Mberengwa Police
Station.
There were
nine young men of appellant's height who were chosen randomly from the local
business centre to take part in the parade. The nine young men wore
dreadlocks. The identification parade was conducted from a place behind
one of the buildings at the police station.
The
participants were unknown to the witnesses who were in a victim friendly office
whence they could not see what was happening at the identification
parade. The appellant who had shaven his hair wore a bluish pair of
trousers and put on a white t-shirt with vertical stripes. He was advised by
the officer conducting the parade that he had a right not to take part in the
identification parade. It was further explained to him that he was free
to choose any place in the parade.
The
appellant chose to stand at the far end of the parade and became the tenth
participant. Of the six witnesses who took part in the identification
three state witnesses Beatrice, Chidochashe and Davison picked him out as the
offender. After each witness identified him the appellant would be told
by the officer conducting the identification parade that he had a right to
change position. He decided to remain in the same position.
Photographs
of the young men lined up in the identification parade were taken.
Photographs of each witness touching the appellant as he or she identified him
were also taken. They were produced in court as exhibits.
Although, Miss Ncube, at the beginning of the hearing
of the appeal sought to impugn the credibility of the identification evidence
on the ground that the parade was not organized and conducted in accordance
with standard requirements, it is clear from the evidence that the organization
and conduct of the identification parade met the required standards. Not
only were the participants made to line up at a place hidden from the witnesses
all the nine wore dreadlock hair styles.
The
appellant who had worn a dreadlock hair style at the time the offence was
committed whether by him or not had shaven his hair at the time he took part in
the identification parade. The police had clearly made it more difficult
for the child witnesses who had seen a young man wearing a dreadlock hair style
on 25 October 2006 to identify him nonetheless when he no longer wore the
dreadlocks. The clear possibility was that if the children had acted on
their imagination they would have picked one of the young men in the
identification parade who wore a dreadlock hair style.
The
appellant himself realized the credibility of the identification by the three
witnesses because he alleged in evidence that they had seen him before the
identification parade. He was in fact challenging the witnesses to admit
having seen him either in a police truck or at their villages. The
witnesses vehemently denied the allegation sticking to their evidence that the
positive identification of him as the offender was based on their observation
of him on the 25 October 2006.
On the
credibility of the state witnesses the court a quo had this to
say. On Beatrice Shoko it said:
“The court found her to be a very
intelligent young girl and was very coherent and consistent and straight forward
in giving her evidence. Despite the fact that, the deceased was her
sister she, however, remained calm throughout her evidence. We therefore
have no hesitation but to accept her evidence as credible.”
On
Chidochashe the court a quo said:
“Despite the absence of dreadlocks
she was able to positively identify him at the police station.
… Despite her age the witness
struck the court as an honest witness who withstood all the skillful cross
examination by the defence counsel. The court has no doubt that she was a
credible witness. Her evidence corroborated that of Beatrice Shoko in all
material
respects.”
On Davison the court a quo
said:
“He also did not see the accused
until at the police station when he positively identified him as the man whom
he had seen at the business centre. He managed to identify him even when
he no longer had dreadlocks. When asked as to how he had identified him
he said he had identified the accused by his face a opposed to his clothes.
He also stated that the deceased was wearing a blue trousers and a white
shirt. Again this witness was subjected to a rigorous cross examination
but this did not in any way sway him from his evidence which he gave in a
straight forward manner. This witness' evidence although it is at
variance with one of the above witnesses as far as the clothes are concerned he
no doubt corroborated both of them in terms of identifying accused by his face
despite the absence of dreadlocks.”
The court
therefore has a case in which the trial court found each of the child witnesses
called by the state to have given credible evidence with the effect that their
evidence was found to have corroborated each other on the crucial fact of the
identification of the appellant as the offender. Unless it is
demonstrated that a trial court fell into error in the assessment of the
credibility of witnesses it had the advantage of seeing and hearing whilst
giving evidence an appellate court would not lightly interfere with a finding
of credibility by a trial court.
In this case
the court a quo was aware of the dangers of mistaken identification
where child witnesses are involved. It clearly looked closely at the
circumstances of the case to see whether there were factors which militated
against acceptance of the evidence of the witnesses as credible.
It is of
particular importance that all the three witnesses attested to seeing a young
man who wore a dreadlock hair style. Davison had the young man within
sight at the road show for no less than 45 minutes. The young man spoke
to the deceased in his presence. He also addressed him directly telling
him to leave the car wreckage. He saw him pick up a booklet at the end of
the road show. The young man seen by Beatrice and Chidochashe was in
possession of what they said was a book. The ability of Davison to
describe the facts relating to the different encounters he had with the young
man at the road show attests to the reliability of his evidence that the young
man was the appellant.
The evidence
given in support of the defence case corroborated the evidence of
identification of the appellant as the offender. It is common cause that
late in the afternoon of 25 October 2006 the appellant was at Number 53C – Mine
when a white motor vehicle arrived. He mistook the motor vehicle for a
police car and ran away.
Early in the
morning of 26 October 2006 the appellant went to Tendai Muzenda's
homestead. There he asked for a pair of scissors and a mirror saying he
wanted to shave his hair. He told Tendai that he wanted to remove the
hair and ipso facto the dreadlocks to disguise his identity from the
police because of an offence he had committed with one Newman. Although
the appellant referred to an offence he said he had committed with Newman it is
clear that he had all along worn the dreadlock hair style without any fear of
identification.
On 15
November 2006 the appellant gave a confirmed warned and cautioned statement in
answer to the allegation that he had killed the deceased. The appellant
said:
“On 25 October 2006 from morning I
was carrying gold ore with Tinaye with a scotcart. The scotcart broke down
and we untied the donkeys. I then went back to the compound. A
police vehicle arrived and then I ran away from them. I went to Tinaye's
place until it was dark. After that I went back and slept in Number 71C –
Mine. I woke up the following day and I went to Meredisi. When I
got there I was barbed my hair by my sister-in-law Givemore's mother. I
had always wanted to barb the hair because the hair had turned brown. I
later went back to the compound and on the way I met Sparks who told me that
the whole community was accusing me of raping and murdering the girl.”
Firstly, the
reason he gave for having the hair shaven is at variance with the reason he
gave to Tendai.
Secondly,
Tinaye gave evidence to the effect that he last saw the appellant at 12pm and
did not see him until 4pm. The evidence of Tinaye destroyed the
appellant's alibi. In his evidence the appellant had said he was with
Tinaye at the time the offence was alleged to have been committed. The
appellant could either be with Tinaye or at the place the state witnesses said
he was at about 1pm on the day in question. The alibi having been
destroyed by the evidence of Tinaye the appellant was shown by credible
evidence to have been at the road show at about 1pm and shortly thereafter
kidnapping the deceased on her way home from school in the company of Beatrice
and Chidochashe.
The court a
quo was alive to the fact that it was dealing with a case in which the
guilt of the accused was sought to be established by circumstantial
evidence. It was satisfied upon application of the relevant test that the
only fact which can be established by reasonable inference from all the
circumstances of the case was that the appellant was the killer of the
deceased.
The court a
quo said:
“In our view, the accused's
activities point to no other way other than his full involvement in the murder
of the deceased. The question then is, is there any other inference which
a reasonable court can draw other than that the accused is responsible for that
murder. The answer in our view is in the negative. We find that
there is no other inference which can exclude his innocence.”
The decision
of the court a quo is supported by evidence. There is therefore
no basis on which the court can interfere with the conviction of the appellant
of murder with actual intent to kill the deceased.
It had been
suggested in the court a quo which argument was not pursued by Miss Ncube
on appeal that the youthfulness of the appellant at the age of 18 years was an
extenuating circumstance. In dismissing the argument the court a quo
correctly observed that the facts surrounding the commission of the offence
show an element of courage and wickedness on the part of the appellant wholly
inconsistent with youthful behaviour. The court shares the same
view.
There is no
basis for interfering with the finding of the court a quo on the
absence of extenuating circumstances.
The appeal
against both conviction and sentence is dismissed.
GOWORA JA:
I agree
HLATSHWAYO JA:I
agree
Majoko & Majoko, appellant's legal practitioners
Attorney General's Office, respondent's legal practitioners
