GUVAVA
JA:
This
is an automatic appeal against the conviction for murder with actual
intent and sentence of death imposed by the High Court Bulawayo,
sitting as a Circuit Court in Hwange on 23 November 2012.
The
appellant was charged with the murder of the deceased, it being
alleged that on 12 October 2011 and at Mabale grazing lands the
appellant did wrongfully, unlawfully and intentionally kill Virginia
Mukandla a female adult in her lifetime therebeing.
The
facts that gave rise to this matter may be summarised as follows.
The
appellant was employed as a herdboy by the deceased and her husband.
At the relevant time the appellant was aged thirty-one (31) and the
deceased was twenty-nine (29) years old. On 12 October 2011 at about
0600hrs, the appellant approached the deceased's husband and asked
him to accompany him to fetch some firewood. The deceased's husband
was unwell and the deceased offered to go in his stead. They then
left in an ox drawn scotch cart.
At
about 1300hrs, the deceased's husband noticed that the dog that had
accompanied the deceased and the appellant had returned to their
homestead without the two. He decided to ask their neighbour, a Mr
Matthew Moyo, to follow the appellant and the deceased.
Mr
Moyo followed the tracks that had been made by the scotch cart which
had been used by the appellant and the deceased. When he arrived at
the scene he found the scotch cart and oxen tied to a tree. Upon
further investigation he saw the deceased lying face down in a pool
of blood. She had a deep cut on the back of her neck and she was
dead. The appellant was not at the scene. He returned home with the
news and a report was made to the police.
The
appellant was subsequently apprehended by one Clifford Ncube and
other game rangers in the National Parks area on suspicion that he
was poaching. When the appellant was questioned by Mr Ncube, he told
him that he was on his way to Tsholotsho to visit his wife. Mr Ncube
advised him that he was lost and suggested that they should go to the
National Parks Main Camp where he would get transport to Tsholotsho.
The appellant tried to run away but was apprehended by Mr Ncube and
his colleagues and taken to the National Parks Main Camp. They
discovered that the police were hunting for him in connection with
the death of the deceased and he was subsequently arrested.
A
post mortem report, prepared by Doctor Sanganai Pesanai, a registered
medical practitioner at United Bulawayo Hospitals was produced at the
trial of the appellant. He observed that the deceased, who was about
thirty weeks pregnant, had a laceration at the back of her neck. He
found that the cause of death was cervical spine fracture due to
assault.
Upon
his arrest the appellant stated in his warned and cautioned statement
that he was cutting some firewood near the place where the deceased
was sitting. He missed the wood and the axe struck the deceased on
the back of her head. In his evidence in chief he explained that the
axe he was using slipped from his hand and accidentally struck the
deceased.
The
court a
quo
disbelieved the appellant and found that he had deliberately attacked
the deceased with the axe. It found him guilty of murder with actual
intent.
It
was the unanimous view of this Court that the court a
quo had
misdirected itself, in finding on these facts, that the appellant had
deliberately killed the deceased.
The
court a
quo
found that the only inference that could be drawn from the
appellant's explanation on how the deceased came to be struck by
the axe together with his conduct of running away from the scene was
that he was guilty of murder with actual intent.
At
the hearing, the appellant's counsel submitted that the finding by
the court that the appellant had intentionally killed the deceased
was not the only inference that could be drawn from the facts of the
case. Ms Moyo referred the court to the case of R
v Blom
1939 AD 188, where the Court set out two cardinal rules which must be
taken into account when dealing with circumstantial evidence:
(1)
The first rule is that the inference sought to be drawn must be
consistent with all the proved facts; and
(2)
The second is that the proved facts should be such that they exclude
every reasonable inference from them save the one sought to be drawn.
In
the present case it is our view that the inference that the appellant
deliberately attacked the deceased is not the only inference that can
be drawn from the proven facts.
(a)
Firstly there was no evidence placed before the court of any motive
for the appellant to want to kill the deceased.
(b)
Secondly, it was not in dispute that on the day in question the
arrangement was that the appellant would go to collect firewood with
the deceased's husband. It was only because the latter was unwell
that the deceased offered to go with him. Thus the decision that the
deceased accompany the appellant was made on the spur of the moment.
(c)
Thirdly, from the evidence of the deceased's husband there was no
bad blood between the appellant and the deceased; and
(d)
Finally the evidence of the police details did not state that there
was any evidence of a struggle at the scene.
The
court a
quo
found that the fact that the appellant fled from the scene instead of
going to make a report about what had happened was indicative of his
guilt.
If
indeed the deceased was struck with the axe in the manner described
by the appellant (and there is no contrary explanation on the record)
then his explanation that he ran away because he was so shocked by
what had happened is in our view plausible.
However
there can be no doubt, even accepting the appellants own evidence,
that chopping firewood in such close proximity to the deceased was
indeed negligent. It should have been reasonably foreseeable to an
ordinary man that an accident with an axe could occur.
The
angle that the appellant described as the one used to chop the
firewood could easily have caused injury to a person who was so close
to where the firewood was being chopped.
In
our view, the fact that there were no freshly chopped pieces of
firewood at the scene would not necessarily mean that the appellant
set out to attack the deceased. It could very well have been that the
deceased was struck with the very first attempt by the appellant to
chop the firewood.
As
there was no eye witness to the offence the appellant must be given
the benefit of the doubt.
Ms
Ngwenya,
for the State, conceded that on the facts, the court a
quo
should have returned a verdict of culpable homicide.
In
our view this concession was properly made.
As
indicated below we proceeded to set aside the conviction and sentence
imposed by the court a
quo.
Having substituted the conviction of murder with that for culpable
homicide, we then invited argument in mitigation before passing
sentence.
In
assessing sentence the court took into account everything that was
said on the appellant's behalf in mitigation.
It
considered that he is a contrite thirty-three (33) year old first
offender who is married with a five (5) year old child. He is the
sole bread winner and his family is wholly dependent on him. The
appellant spent a year in prison prior to his trial and another year
after he was convicted by the court a
quo
whilst waiting for the appeal to be heard.
However,
in our view, despite the mitigatory factors the appellant's degree
of blameworthiness is high and calls for an effective term of
imprisonment. A young woman, in her prime, lost her life and that of
her unborn child due to the negligence of the appellant. It is the
duty of this Court to mark its abhorrence of such conduct and uphold
the sanctity of human life.
In
the result, the appeal succeeds partially and it is ordered as
follows:
1.
The conviction and sentence of the appellant for murder with actual
intent are hereby set aside.
2.
The appellant is hereby found guilty of culpable homicide.
3.
The appellant is sentenced to six (6) years imprisonment, of which
two (2) years are suspended for a period of five (5) years on
condition that he is not during that period convicted of an offence
involving the unlawful death of another person and for which he is
sentenced to a term of imprisonment without the option of a fine.
GWAUNZA
JA: I
agree
PATEL
JA: I
agree
S
K M Sibanda & Partners,
appellant's legal practitioners
The
Attorney General's Office,
respondent's legal practitioners
