It is alleged they killed one Michael Sunderland (“first
deceased”) and Geoffrey Andrew Willian Povey (“second deceased”) who were aged
thirty-seven (37) and sixty-five (35) years respectively at the time of their
death.
The appellants pleaded not guilty but after a full trial
they were both convicted of murder with constructive intent in respect of the
first deceased and of murder with actual intent in respect of the second
deceased.
The trial court, finding no extenuating circumstances,
passed the sentence of death upon both appellants. The appellants, having an automatic right of
appeal to the Supreme Court filed this appeal against both conviction and
sentence.
No grounds of appeal were filed with respect to the first
appellant, counsel being of the view that no meaningful submissions could be
advanced to assist this appellant.
For the second appellant, only one ground of appeal was
proffered challenging the sentence imposed as 'excessive.'
However, even counsel for the second appellant, in his
heads of argument, conceded that the conviction and sentence were proper and
there was no misdirection on the part of the trial court.
At the hearing of this appeal, both counsel for the first
appellant and for the second appellant submitted, and correctly so in my view,
that they had no meaningful arguments to place before the court to assist their
respective clients.
The brief facts of this case, which were largely common
cause, appear from the State summary and evidence given at the trial.
On 27 March 2011, the first and the second appellants met
the first and second deceased at Puzey and Payne Garage, Gweru. The appellants
had told the now deceased persons that they had some gold for sale and that
there was a gold rush near Kwekwe River. The deceased occupied the front seat
of their motor vehicle, a Nissan Patrol registration number ABK 0999, while the
appellants got into the back of the motor vehicle. The appellants had in their
possession what the State called a bottle of cyanide poison and what the
appellants termed some tablets to induce drowsiness of the deceased to
facilitate the robbery of their properties. The appellants put the poisonous
substance in the drinking water of the first and second deceased persons which
was in the cooler box at the back of the vehicle. On arrival at Cactus Farm,
about 10 km from the Gweru-Kwekwe road, the first and second deceased drank the
poisoned water. The first deceased died
instantly after drinking the water. The second deceased vomited and regained
consciousness. He was subsequently struck on the head by one of the appellants
and died on the spot. The two appellants
took from the deceased, among other things, their Nissan Patrol vehicle, two
metal detectors, $260= cash, and a hunting knife from the first deceased and
$100= cash, and beige desert boots from the second deceased.
The appellants were confronted by the police while driving
the stolen vehicle along the road to Sango Boarder Post near Chikombedzi
leading to the arrest of the first appellant on 29 March 2011. The second
appellant escaped but was later arrested in Bindura on 11 July 2011.
On 31 March 2011, Dr A R Casteiinos carried out post
mortems on the remains of the deceased persons and concluded that in respect of
the first deceased the cause of death was indeterminate due to severe state of
decomposition. In respect of the second deceased, he concluded that the cause
of death was:
(a) Depressed skull fracture.
(b) Head injury.
(c) Assault.
Although the appellants' counsel conceded that both
conviction and sentence were properly made by the court a quo, three matters
call for comment;
(i) Whether the appellants were aware that the pills given
to the deceased were lethal;
(ii)Liability for the death of the second deceased in the
light of both the appellants implicating each other; and
(iii) The proper sentence in the circumstances.
