This is an appeal against the judgment of the High Court sitting at Harare, handed down on 12 December 2016.In the judgment, the court a quo found the first three appellants guilty of murder and the fourth appellant guilty as an accessory after the fact, of public violence.The first three ...
This is an appeal against the judgment of the High Court sitting at Harare, handed down on 12 December 2016.
In the judgment, the court a quo found the first three appellants guilty of murder and the fourth appellant guilty as an accessory after the fact, of public violence.
The first three appellants were sentenced each to 20 years imprisonment.
The fourth appellant was sentenced to a fine of $500, or, in default, three months' imprisonment with a further three years imprisonment suspended on conditions.
The appeal is against the convictions and the sentences.
Background Facts
On 29 May 2011, a political party, “the MDC-T”, held a political gathering at a shopping center in one of the suburbs in Harare. The purpose of the gathering was to celebrate the party's T-shirt visibility programme.
A group of police officers, led by the deceased, was dispatched to disperse the gathering which was deemed illegal.
When ordered, by the police officers, to disperse, the group did not resist but pleaded with the police to first complete their food preparations, which included a barbecue, before they could disperse. The police agreed to this arrangement and left.
Reports later reached the police that the group had thereafter relocated to another shopping centre in the same suburb. The police, once again, led by the deceased, reacted and followed to the new location.
When the officers tried to disperse the gathering at the new location, they were met with stiff resistance. In the melee that ensued, the deceased was stoned by an unidentified assailant. He fell down onto the tarmac. He died as a result of a severe injury to his head which depressed his skull and caused damage to his brain.
On 12 March 2012, the appellants, and 25 others, were arraigned before the court a quo facing one count of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and, alternatively or concurrently, with public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act.
After a protracted trial lasting over four years, the appellants were duly convicted and sentenced as detailed above.
The court a quo found that the first three appellants had, on 29 May 2011, unlawfully and with actual intent to kill, murdered the deceased by hitting him on the head with a brick, causing injuries from which he later died.
It found the fourth appellant guilty as an accessory after the fact to the crime of public violence, which it held to be subsumed in the crime of murder.
The fourth appellant had ferried the first two appellants from the scene of the crime in the vehicle he was driving.
In finding the first three appellants guilty of murder, the court was clear in its mind that the guilt of the accused persons hinged on whether or not the appellants participated in the commission of the crime, either directly or by association. In particular, it was its view that the case against the three appellants hinged on the applicability of the common law doctrine of common purpose, which it dealt with extensively, before convicting the appellants as detailed above.
The Appeal
As indicated above, the appellants were aggrieved by the convictions and sentences. In noting this appeal, they raised six grounds. I cite them here in full:
“1. The court a quo erred and seriously misdirected itself when it failed to properly apply the law and discharge the appellants as it was obliged to at the close of the State's case in terms of section 198(2) of the Criminal Procedure and Evidence Code, when no evidence justifying their placement on their defence had been led, and, in doing so, denied them a fair trial with the result that the conviction and sentence must be vacated.
2. The court a quo further erred and misdirected itself in finding the appellants guilty on the basis of the doctrine of common purpose, when, in law, the doctrine is no longer part of our law; the criminal law of Zimbabwe, having been codified in the Criminal Law Codification and Reform Code, which specifically outlaws Roman-Dutch Criminal Law.
3. The court a quo further erred and misdirected itself when it convicted the fourth appellant as an accessory after the fact to the crime of public violence when there is no actual perpetrator convicted of public violence.
4. The court a quo further erred and misdirected itself when it failed to find, as an extenuating circumstance, the fact that none of the appellants were shown to have directly participated in the melee that resulted in the deceased's death, thus reducing their moral blameworthiness.
5. Taking into account the full circumstances of the case, the court a quo's sentence of 20 years imprisonment induces a sense of shock in its excessiveness.
6. The court a quo erred and misdirected itself when it suspended a portion of the sentence on wide incompetent terms unrelated to the crime under which the appellant was convicted.”
The Issues
The issues that fall for determination in this appeal are interwoven.
The first ground of appeal argues that the court a quo erred in failing to acquit the appellants at the close of the State case when there was no evidence justifying the continuation of the trial beyond that point.
This seemingly raises the issue whether the court a quo erred as alleged.
I use the word seemingly deliberately. This is so because of the settled position at law, that, failure to discharge an accused person at the close of the State case can only sustain an appeal where it is found that at the close of the State case there was no evidence justifying a conviction and the defence case furnished no such proof.
The position, first debated in the controversial case of Kachipare v S 1998 (2) ZLR 271 (S), has gained traction and is accepted as the correct statement of our law: see S v Hunzvi 2000 (1) ZLR 540 (SC).
It has occurred to me that the rule in Kachipare v S 1998 (2) ZLR 271 (S) can be understood in two distinct senses:
(i) In the one, it renders incompetent and unsustainable, as a ground of appeal, one that simply alleges a failure by the lower court to acquit the appellant at the close of the State case without further alleging that there was no defence evidence proving guilt.
In this sense, it is an instruction to appellants not to seek to rely on the bare allegation that at the close of the State case there was insufficient evidence. The ground of appeal must, of necessity, attack the totality of the evidence led in the trial.
(ii) In the other, it directs the Appellate Court determining the question raised by such a ground to also consider the evidence led in the defence case before upholding or dismissing such a ground.
It is however not necessary that I debate to finality which of the two senses the court in Kachipare v S 1998 (2) ZLR 271 (S) intended. For the purposes of determining this appeal, I will assume it is the latter.
In view of the fact that the court a quo relied on the common law doctrine of common purpose to place the appellants, and others, on their respective defences, and, in convicting the appellants at the end of the trial, it is only logical that I deal, firstly, with whether or not the common law doctrine of common purpose was, at the material time, part of the Zimbabwean criminal law.
This is the issue that arises from the second ground of appeal.
Depending on my findings on the above issue, I will proceed to determine whether there was sufficient evidence against the appellants to justify the continuation of their respective trials beyond the close of the State case on the basis of the applicable law. This will address the issue that arises from the first ground of appeal.
The issue relating to the propriety of the sentences imposed on the appellants shall thereafter be determined, and only to the extent that this becomes necessary.
I have thus set up three issues which I now deal with seriatim. These are:
1. Whether, at the material time, the common law principle of common purpose was part of the Zimbabwean criminal law;
2. Whether, at the close of the State case, there was evidence justifying the continuation of the trial; and
3. Whether the sentences imposed on the appellants are severe and induce a sense of shock.
The Law
Was the common law doctrine of common purpose part of the Zimbabwean criminal law at the material time?
The criminal law of Zimbabwe was codified by the Criminal Law (Codification and Reform) Act [Chapter 9:23], “the Code”. The Code was promulgated in 2005 and came into force on 1 July 2006.
The purpose of the codification was partly to bring together, under one statute, the main aspects of the criminal law that were hitherto fragmented, and, partly, to reform and improve on the criminal law. This explains the lengthy and double-barrelled title of the Code: see Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23] by PROFESSOR G FELTOE…,.
The Criminal Law (Codification and Reform) Act (the Code) therefore not only systematically arranged the existing material on criminal law conveniently under one legislation but also amended and modified the law.
Whilst the codification of the law brought with it convenience, the reform had wide-reaching ramifications. These ranged from the cosmetic, such as changing the nomenclature for some common law crimes, to the radical and fundamental. It changed the source of criminal law and supplanted itself and other statutes as the predominant source of the criminal law in the jurisdiction.
It appears to me, that, it was the clear intention of the law makers to make the Criminal Law (Codification and Reform) Act (the Code), and other statutes, the sole sources of the criminal law in the jurisdiction after the fashion of the Napoleonic and other civil law penal codes. This it sought to achieve through the cumulative effect of the provisions of sections 3 and 9 of the Code.
Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides that:
“3. Roman-Dutch criminal law no longer to apply
(1) The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on 10 June 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies, or repeals that law.
(2) Subsection (1) shall not prevent a court, when interpreting any provisions of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of -
(a) The criminal law referred to in subs (1); or
(b) The criminal law that is or was in force in any country other than Zimbabwe.”
It further appears to me that the language used in the section was deliberately wide to oust as much of the common law as is possible and was intended to make the Criminal Law (Codification and Reform) Act (the Code), and other statutes, the predominant sources of the criminal law in this jurisdiction with the common law providing a fall-back position to avoid any possible gaps in the law.
Thus, to widen the scope of its application, and, contrary to the general principle of interpretation of statutes that holds that statutes can only oust the application of the common law expressly and in clear language, section 3 of the Criminal Law (Codification and Reform) Act (the Code) permits and legitimizes the ousting of common criminal law by implication: see S v Matare 1993 (2) ZLR 88 (SC).
Section 9 of the Criminal Law (Codification and Reform) Act (the Code), which anchors the legitimacy of any criminal conviction and penalty in this jurisdiction provides that:
“9 Liability for criminal conduct
A person shall not be guilty of or liable to be punished for a crime unless -
(a) The crime is defined by this Code or any other enactment; and
(b) The person committed the crime or was a party to its commission as provided in this Code or in the enactment concerned; and
(c) His or her liability is based upon voluntary conduct; and
(d) Subject to subs (5) of section seventeen, the person engaged in the conduct constituting the crime with any of the blameworthy states of mind referred to in sections thirteen to sixteen of this Code or any other enactment may require; and
(e) His or her liability is based upon unlawful conduct, that is upon conduct for which there is no lawful excuse affording that person a complete defence to the criminal charge, whether in terms of Chapter XIV or otherwise.”
I digress briefly to note that the position I have detailed above held possibly only up to 2013 when the new Constitution was adopted. I say so advisedly because section 89 of the Constitution, which was enacted after the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides that:
“89 Law to be administered
Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Cape of Good Hope on 10 June 1891, as modified by subsequent legislation having in Zimbabwe the force of law.”
There is therefore some scope to argue, that, through the provisions of section 89 above, the Constitution has reinstalled, for all purposes and for all laws, including the criminal law, the Roman-Dutch common law as a source of law. Put differently, there is scope to argue that the provisions of section 89 of the Constitution have clouded and rendered ambiguous the language of section 3 of the Criminal Law (Codification and Reform) Act (the Code), which, before the enactment of the Constitution, was clear and required no interpretation.
I remain of the above view notwithstanding, that, the repealed Constitution had a similarly worded section 89 on the law to be administered by the courts.
The law in force in the Cape of Good Hope on 10 June 1891 or Roman-Dutch common law, as it is appropriately called, was the applicable law together with subsequent legislation modifying the common law.
The Criminal Law (Codification and Reform) Act (the Code), having effect on a date subsequent to the adoption of the repealed Constitution, was permissible “subsequent legislation” modifying the common law.
In summary, therefore, the law of common purpose has seen major changes, in 2006 when the Criminal Law (Codification and Reform) Act (the Code) took effect, possibly in 2013 when the Constitution was adopted, and, in 2016, when section 196 of the Criminal Law (Codification and Reform) Act (the Code) was amended.
Quite apart from the fact that we did not have the benefit of researched argument from counsel on it, this issue is not relevant for the determination of this appeal.
This is so because the material date in this appeal is 29 May 2011 - which fell well before the adoption of the Constitution.
I merely flag the possible impact of section 89 of the Constitution on section 3 of the Criminal Law (Codification and Reform) Act (the Code) for law development purposes.
The issue illustrates how complex the determination of the applicable criminal law in any case after the codification of the criminal law may become and how it would appear that the codification and reform of the criminal law has created an un-intended minefield for the unwary.
Returning to the issue under discussion, it is common cause that the material date in this appeal is 29 May 2011. This was the date of the commission of the crime.
Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) applied.
Its language is clear and admits of no doubt. It therefore requires no interpretation.
To establish whether or not the common law principle of common purpose was applicable at the material time, I must perforce look to the text of the Criminal Law (Codification and Reform) Act (the Code) to establish whether or not the Code had, at that time, expressly or impliedly enacted, re-enacted, amended, modified or repealed the principle under challenge. If it had dealt with the principle in any manner as detailed in section 3 of the Criminal Law (Codification and Reform) Act, then, the common law principle was no longer applicable. The reverse would also hold.
What then is the common law doctrine of common purpose?
It is a principle that deems the participation of two or more persons in the commission of a crime where the two or more persons associate with a common intent to commit the crime and one of them does commit the crime. It thus provides for co-perpetrators of crime with a common intent. In essence, the doctrine provides, that, if two or more people act together in pursuance of a common intent, every act done by one of them in furtherance of that common intent is deemed, at law, to be the act of them all: see Macklin, Murphy and Others (1838) 168 ER 1136; and Chauke v S 2000 (2) ZLR 494 (S).
The common law doctrine of common purpose has a dragnet effect. This is self–evident. As the head-note to S v Safatsa 1998 (1) SA 869 AD has it:
“The principle applicable where there is shown to have been a common purpose is that the act of one participant, in causing the death of the deceased, is imputed, as a matter of law, to the other participants (provided, of course, that the necessary mens rea is present).
A causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved to sustain a conviction of murder in respect of each of the participants.”
When the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) was enacted, it provided, in section 196, for the liability of co-perpetrators who associate with each other with the intention that each or any of them shall commit any crime.
Broadly, this provision re-enacted the essence of the common law doctrine of common purpose.
In terms of section 3 of the Criminal Law (Codification and Reform) Act (the Code) as detailed above, the direct application of the common law doctrine of common purpose, in establishing the criminal liability of accused persons at the material time, was, therefore, ousted by the enactment of section 196 of the Criminal Law (Codification and Reform) Act (the Code).
The criminal liability and punishment for two or more people who allegedly acted with a common intent at the time could only be imposed in accordance with the provisions of the Criminal Law (Codification and Reform) Act (the Code).
On the basis of the above, it is my specific finding, that, at the time the appellants were charged with the crimes of murder and/or public violence, the common law doctrine of common purpose was not applicable in this jurisdiction. The then section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) was the applicable law.
Before I proceed to analyse the decision a quo, I wish to comment on the submission by counsel for the respondent, that, the common law doctrine of common purpose is still applicable in our courts as this Court has applied it in two instances after the promulgation of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ( the Code). Reference, in this regard, was made to the decisions of this Court in (1) Vusimuzi Moyo (2) Khulekani Nkomo v S SC37-13 and Ncube v S SC58-14.
As indicated above, the law appears to be in flux in the wake of the adoption of the Constitution. The critical factor, in my view, is the date when the alleged crimes were committed.
More importantly, though, I am unable to find a discussion of section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in either of the two cases.
I do not, therefore, hold the two cases as authority for the proposition that the common law doctrine of common purpose was the applicable law at the time the crimes alleged against the appellants herein were committed.
