MAVANGIRA
JA:
This
is an appeal against the conviction and sentence of the appellant by
the High Court on a charge of murder.
The
appellant was charged with murder as defined in s47(1) of the
Criminal Law (Codification and Reform) Act, [Chapter
9:23].
The allegation was that on 23 October 2011 at house number 221
Ephraim Blank Street, Chivhu, he unlawfully caused the death of
Modester Chikaka by pouring paraffin over her body and setting her
on fire causing severe burns all over her body, from which injuries
she died on 26 October 2011.
The
appellant pleaded not guilty to the charge alleging that the
deceased had poured paraffin over her body and set herself alight.
He was convicted after a full trial and sentenced to 13 years'
imprisonment.
The
State's case was based largely on circumstantial evidence. The
State led evidence from three witnesses; Tawanda Miti (Miti), a
police officer, his wife Nyasha Tsopotsa (Tsopotsa) and Sekai
Guramatunhu (Guramatunhu), also a police officer. The evidence of
Miti was to the effect that his wife and he shared the same
residence with the deceased. They lived in adjoining rooms that
shared the same veranda. Each room had its own entrance door from
the common veranda. The deceased occupied one room at the furthest
end. The witness, together with his wife and brother, occupied the
next two rooms after the deceased's. The fourth door led into a
common washroom and toilet. Behind the toilet was a water tap.
During
the night in question, after having retired to bed, he was awoken by
the screaming of a person calling out his name. He went out of his
room and saw flames of fire inside the deceased's room. He next
saw the appellant arriving on the veranda. He instructed the
appellant to put out the fire that was burning in the deceased's
room. He next saw the deceased coming from behind the residence in
the direction of where the water tap was. He observed burn injuries
on the deceased's body. The deceased said to the appellant words
to the effect “Why did you not pour paraffin on yourself as well
since you said that you wanted both of us to die?”
The
deceased kept on saying this and went on to tell the witness that
the appellant was in possession of the matches which he had used to
set her ablaze after he had poured paraffin on her from a paraffin
stove. The witness inquired from the appellant who told him that the
deceased had set herself ablaze. The witness gave instructions for
the deceased to be wrapped in a cloth. He, in the company of his
brother, drove the appellant and the deceased to Chivhu Police
Station where the appellant was searched and the matches was found
in his pocket. He thereafter drove the deceased to hospital.
The
witness was found to be a honest, impressive and reliable witness in
the assessment of the court a
quo.
The
second witness, Tsopotsa's evidence was to the effect that as they
were asleep during the night of 23 October she heard the deceased
screaming “mai wee ndofa” which was translated to mean “mother
I am dying.” Soon thereafter she heard the sound of a door being
opened. She heard footsteps going to the backyard at the same time
as the deceased yelled “Brandon's father!”, a reference to the
witness' husband. In response, her husband went out with her in
tow. She saw the deceased standing by the doorway to the toilet. The
half petticoat that the deceased was wearing had been burnt and was
stuck to her body. She had burn injuries on her body. The appellant
was standing by the deceased's doorway. The deceased accused the
appellant of setting her alight and demanded that he finishes her
off as he had been ill treating her for too long. The appellant, on
the other hand, was saying that the deceased had burnt herself. The
witness also saw smoke coming out of the deceased's room.
The
witness was instructed by her husband to find something to wrap the
deceased with as she was virtually naked. She took a sheet from the
deceased's bed and wrapped her with it before her husband
instructed the deceased to get into the vehicle so that they could
proceed to the hospital. The appellant also boarded the same vehicle
and they left.
As
with Miti, the court a
quo
was impressed by the witness' demeanour. It found that her
evidence was largely corroborative of that of Miti. The court a
quo
also noted that the witness' evidence that the deceased accused
the appellant of persistent harassment and further said that the
appellant ought to have finished her off was not disputed or
challenged in cross examination. The court thus accepted that the
deceased uttered the words testified to by the witness.
Sekai
Guramatunhu was the State's third and last witness. On the night
in question at around 2:00 or 3:00am she was at the police station
when Miti entered the charge office with the appellant. After Miti
made a report to her she went outside to where Miti's vehicle was.
Inside the vehicle was the deceased who was in pain. She observed
the injuries that the deceased had sustained and suggested that she
be ferried to the hospital. The appellant followed her to the
vehicle and told her not to talk to the deceased as she had been
burnt. She assumed that the appellant's utterance was because the
deceased was in pain.
The
defence applied for discharge at the end of the State case in terms
of s198(3) of the Criminal Procedure and Evidence Act, [Chapter
9:07].
The State consented to the application. The court a
quo
had a different view and it dismissed the application on the basis
that the evidence that the State had adduced raised a prima
facie
case that the appellant had to answer.
In
its ruling the court a
quo
stated inter
alia:
“In
short the accused does not deny being in the company of the
complainant (sic) at the time that this incident took place. The
deceased ended up dead in circumstances where there were certain
utterances which intended (sic) to lead to an inference that the
accused may well have had something to do with this matter. It is
only fair that the court is placed in a position to get the whole
story of what took place. The accused is the only person who was
there who can give such story. That application is dismissed.”
The
appellant's evidence was to the following affect. The deceased was
his second wife and had been so for five years. He had no children
with her but had four children with his first wife. On 23 October
2011 he arrived at the place where the deceased was staying at about
1:00am. The deceased opened the door for him and they exchanged
greetings. She went back to bed and he “sat on a chair which was
next to the table and this table is located next to the bed.” He
advised her that there were some issues that he wanted to talk to
her about. She got out of bed and got dressed in a skirt and a
blouse. She went and sat across the table opposite to where the
appellant was seated.
When
asked what sort of conversation he had with her he said:
“I
then advised her that she was in the habit of going to the bars in my
absence. I even went to tell her (sic) the names of the persons who
had told me this information. These people were my relatives and were
actually known to her.… They are two of my brother's sons. … I
then advised her that by going to the bars like what she was doing
these young men were actually seeing them (sic) and as such was
causing a lot of embarrassment.… She was silent during the time
that I was telling her that. But she suddenly got up and said that
she was going to set herself alight.… During the time that she was
making that utterance she was actually making the way to the stove
that was located next to the bed.… It was a pram (primus) stove
that normally uses paraffin. I had eventually bought that paraffin
stove for use during the time that there will be no electricity.…
She suddenly got up, grabbed the stove and poured the paraffin on
herself.… She let go the stove and she quickly grabbed the matches.
It was during the time that I quickly grab (sic) (grabbed) her by
both hands as I was afraid that she might strike the matches. I then
kept a firm grip on the hand holding the matches in order that she
will not be able to lit (sic) (light) the matches. I took the matches
from her and placed it in my pocket.… I then asked her why she
wanted to set herself on fire.… She did not respond and she went
back and sat on the chair and I sat back on my chair. I then asked
her why she wanted to set herself on fire and that I was just
reprimand(ing) her not that I no longer loved her.… She did not
reply. I then kept on telling her to desist from her behaviour and
that I was going to continue maintaining her as I have (sic) been
doing before. Thereafter she first remained silent. I then started to
contact her aunt and her sisters unfortunately I failed to get
through to them. I continued sitting down trying to cool her down
whilst advising her to desist from her behaviour. It was after some
time had lapsed whilst I was trying to contact her aunt and her young
sister and I was failing to get through. So we sat for quite some
time… I was afraid to leave as I thought that maybe she might do
something. It was after we had settled for quite some time that she
might have noticed that I was dozing as it was during the night that
she took advantage because I just suddenly heard the sound of a chair
being moved. When I got up she had already stood up and rushed to get
another box of matches that I had not noticed.”
The
appellant was asked how much time had elapsed between the time that
she poured paraffin on herself and the time when she rushed to get
another box of matches. His response was “I think about 30 minutes
when I was talking to her.”
He
proceeded to state as follows:
“When
I heard the sound of the chair and I got up he (sic) (she) was
already stood up (sic) and picked up the matches box (sic) and she
then struck the matches. I also assumed that because of the time that
we had spent after she had poured paraffin on herself that maybe it
might have vapoured off. She actually directed the flame of the match
on the bottom but it failed to catch and she put it under her arm and
she then caught the fire.… She then screamed whilst advancing
towards me.… She appeared she actually wanted to grab me by the
neck, but she missed, then she grabbed me by one of my hand(s) on the
upper arm. During the time she was now on fire. She actually held me
in an indication that she did not want to let me go (sic).
It
was then that I also caught the fire such that I also suffered
injuries.
I
realised that the fire was quite great and that my life was also in
danger that is when I decided to open the door whilst she was still
holding me. I then advised her that she had to go to the tape (tap)
so that I put out the fire. She left hold of me as we were by the
door and she was now in front. When we got to the tap I instructed
her to kneel down, I opened the tap and there was now water that was
being poured on her head (sic) and all the body.” (my emphasis)
It
is opportune to briefly digress at this stage and take note that in
his confirmed warned and cautioned statement the appellant did not
make any mention of having dozed off. He said that after setting
herself on fire the deceased embraced him and he opened the door
whilst she was so embracing him. He stated inter
alia:
“She
went and sat on a chair which she had been sitting on and I also sat
on a chair. We spent about ten to fifteen minutes while I was
questioning her about the story but she was not responding. Whilst I
was sitting, Modester Chikaka got up from where she was seated and
picked another matches (sic) and struck a matchstick before I got
close to where she was and lit herself and embraced me whilst she was
screaming. I opened the door while she was still embracing me and she
was crying. When I opened the door, the fire burned heavily. She then
ran to the tape (sic) where she poured some water on her. (sic) I
followed her to the tape, (sic) helped her to extinguish the fire. I
then went into the house to extinguish (the) fire which was burning
there and that was when Modester Chikaka informed her neighbours that
I had burned her. I did not want to dispute with her because it was a
waste of time.”
The
appellant further stated in his testimony before the court a
quo
that after putting out the fire he rushed towards the veranda where
Miti gave him a bucket which had water in it and told him to put out
a fire that was burning inside the deceased's room. Inside the
room he saw something that was burning on the floor. It appeared to
be a skirt and he poured water on it thereby putting out the fire.
There was another fire burning at the spot where the deceased had
poured paraffin on herself. After putting out the fire in the room
he went outside and in his words he found the deceased “telling
Miti and others that I had actually poured paraffin on her and set
her on fire. But I actually denied that and advised that she had
done that to herself. But after I had advised her that I am not the
one who had poured paraffin on her, she then kept silent on that
aspect.”
The
appellant was asked how many minutes elapsed between the time that
he put out the fire on her at the tap and the time that he found her
alleging to Miti and others that he had set her on fire. His answer
was “I think the incident could have taken about five minutes.”
He stated that when she was making the allegation she was no longer
on fire as he had doused it.
It
was also the appellant's evidence that during the time that the
deceased was on fire and was crying out he could not make out what
she was saying.
Under
cross examination the appellant said that the deceased called out to
Miti after
he had put out the fire that was burning her and as he was putting
out the fire in her room. He said that the deceased only screamed
out the words “oh mother I am dying” after
he had put out the fire on her. He further said that the deceased
was lying about everything that she was saying to Miti and the
others. He accepted that the deceased did ask him why he had not
also burnt himself. He said that she was lying but he thought that
it was no use arguing with her considering the state of her injuries
at the time and his concern was to seek medical attention for her.
As
to why he had not asked or caused the deceased to remove the clothes
on which she had poured paraffin his response was that he did not
think of it and that he thought the clothes would dry up. He also
thought that the deceased made the utterances that she made against
him in order to “fix” him because he had exposed her infidelity
of being seen in bars with other men.
The
court a
quo
convicted the appellant on the basis that the circumstantial
evidence placed before it proved beyond reasonable doubt that he had
committed the offence. It also found that the State witnesses were
credible witnesses. It concluded that the utterances made by the
deceased constituted res
gestae
and were admissible against the appellant. It was the court a
quo's
view that the issue was whether it was the appellant who had poured
paraffin on the deceased and set her ablaze resulting in the
injuries from which she died and that the absence of a post mortem
report was not fatal to the State case. It concluded that it was the
appellant who had poured paraffin on the deceased and set her
ablaze.
The
appellant raised the following five grounds of appeal against his
conviction and one against sentence:
“1.
The Court a
quo
erred in coming to the conclusion that the State had proved beyond
any reasonable doubt the appellant doused Modester Chikaka 'the
deceased' with the paraffin and set her alight in the absence of
admissible evidence supporting that conclusion.
2.
The Court a
quo
lost its path in concluding that the deceased died from the fire in
the absence of a post-mortem report supporting that finding.
3.
The trial court erred in misapplying the doctrine of res
gestae
by admitting inadmissible hearsay evidence of the deceased in
circumstances where the State had not satisfied the pre-requisites of
such admissibility.
4.
The Court a
quo
misapplied rules of circumstantial evidence and misdirected itself by
making a finding that the appellant committed the actus
reus
of murder in the absence of any proved facts from which that
inference could be drawn.
5.
The Court a
quo
fell into error by summarily rejecting the appellant's defence as
inherently improbable that it could not reasonably be said to be true
in circumstances where the evidence before it supported such a
defence.
AD
SENTENCE
6.
The Court a
quo
erred in imposing a disturbingly severe sentence in circumstances
where the Court a
quo
had made (a) finding that appellant's mitigation was considerably
weighty.”
ISSUE
TO BE DETERMINED
The
issue to be determined is whether or not the State proved the
appellant's guilt beyond reasonable doubt.
Mr
Mpofu,
for the appellant, based his oral submissions before us on five
points. The first, which he indicated was not covered in his heads
of argument, was that the court a
quo
proceeded under circumstances of an irregularity, the irregularity
being that the summary of the State case contained allegations on
which no evidence was led by the State, that such irregularity was
designed to undermine the appellant's defence and colour the
court's mind and that both these aims were achieved.
From
the other four points that he said were covered in his heads of
argument, the second point was that on the application of the proper
legal test, it cannot be said that the defence put forward by the
appellant in the court a
quo
was false and consequently worthy of the rejection by the court.
The
third point was that the cause of death was not established in the
court a
quo.
The
fourth point was that the court a
quo
irregularly admitted inadmissible hearsay evidence and went on to
found its judgment on such inadmissible evidence.
The
fifth and final point was that the requirements for a conviction
based on circumstantial evidence were not met a
quo.
With
regard to the first point the contention was that the State made
damning but false allegations against the appellant on which no
evidence was led. Specific reference was made to paras 2, 3 and 4 of
the Summary of the State case as reflected at p2 of the record of
proceedings. Mr Mpofu
particularly highlighted para 3 which reads:
“The
accused proceeded to take a paraffin stove which was in the room and
poured the paraffin onto the deceased. He took a box of matches from
his trousers pocket, lit one match stick and threw it on the
deceased's body setting her alight.”
It
is my view that if the court a
quo
convicted the appellant purely on the basis of what is stated in the
State Summary and not on the basis of the evidence that was placed
before it, then it goes without saying that the conviction would be
baseless and would not survive this appeal. If, as alleged, the
court's mind was “coloured” and the appellant's defence
“undermined” by the averments in the State Summary, such should
be discernible from a reading of the court's judgment as it would
have no cogency on the basis of the evidence that was placed before
it. In this regard I also take it that by the use of the word
“coloured” the defence meant that the court a
quo
was unduly influenced in a negative manner to the prejudice of the
appellant.
It
is trite that an appeal to this Court is based on the record. It is
also trite that an appellate court will not interfere with the
decision of a trial court or tribunal unless the trial court or
tribunal fundamentally misdirected itself in arriving at its
decision. It is trite that an appellate court will not lightly
interfere with a trial court's factual findings.
It
is common cause that the appellant's conviction was not based on
direct evidence. There was only circumstantial evidence that was
adduced before the court a
quo.
I might at this stage deal with and comment on the issue raised that
the cause of the deceased's death was not established. On this
aspect the court a
quo
stated:
“In
reasoning that a prima
facie
case was established in relation to the main charge, I do so mindful
of the defence argument that a post mortem report was not produced. I
however considered that proof of death may arguably be established
from the fact that no issue is taken by the accused to the allegation
that the deceased died of burn injuries as alleged in the
indictment.”
In
this regard para 3 of the appellant's Defence Outline is, in my
view, pertinent. It reads in part:
“The
accused will further state that the
now deceased caused her own demise by pouring herself paraffin (sic)
and setting herself alight.”
(the underlining is mine)
Significantly,
the Defence Outline which is in response to the allegations in the
State Summary, does not question or dispute the State's averment
that “the deceased later died on 26 October 2011 from the injuries
she had sustained.” Notably, the death occurred on 26 October 2011,
some three days after the deceased sustained the burn injuries. The
differing assessments of plus or minus 35 per cent and 76 per cent
respectively, as given by two different doctors with regard to the
percentage degree of burns on the deceased, do not, in my view,
impact negatively against the State case in the circumstances. The
doctor who saw the deceased at Chivhu Hospital on 23 October 2011 at
about 0300 hours observed that she had “large surface area burns of
plus or minus 35% of body surface.” The doctor who saw her on the
following day at Harare Central Hospital at about 1020 hours observed
“76 per cent open flame burns on torso, lower limbs and upper limbs
and neck and …”
This
disposes of Mr Mpofu's
third point.
It
must not be overlooked that the onus
on the respondent was to prove its case against the appellant beyond
reasonable doubt. Mr Mpofu's second, fourth and fifth points
revolve around the issues of the application of the evidential rules
relating to res
gestae
and to circumstantial evidence. The circumstantial evidence is made
up of different aspects of the events that took place as the
incident unfolded. The deceased's utterances the subject of the
conflicting contentions regarding hearsay evidence with particular
reference to res
gestae
form one of the weighty aspects, among others, that emerge from the
evidence that was placed before the court a
quo.
The admissibility of the evidence of those utterances has been hotly
contested by the Defence.
What
clearly emerged from the evidence by the State witnesses, which
evidence the trial court accepted, was that during the time that the
deceased was on fire she called out “oh mother I am dying” and
she also called out Miti's name. Soon after the fire that was
consuming her had been doused and as soon as she saw Miti who she
had called out to, she told him (Miti) and the others who had come
out that the appellant had poured paraffin on her and set her
alight. The defence's contention is that this was hearsay evidence
of utterances that did not amount to a spontaneous exclamation of a
statement at the time of the relevant event, which would at common
law constitute res
gestae.
The submission was made that the deceased had had ample time for
cogitation in the five minutes that elapsed from the time that she
was burning, attempting to put out the fire, running to the tap and
running back and then making the allegation, such that whatever she
said at that stage could not qualify as part of the res
gestae.
The argument was that the spontaneity requirement was not met.
Mr
Mapfuwa,
for the respondent, on the other hand submitted that the court a
quo
decided that the deceased's utterances were res
gestae
because she had screamed out and footsteps were heard by the first
and second witnesses and that immediately upon returning from the
water tap she had accused the appellant of having doused her with
paraffin and set her on fire. He submitted that the court a
quo
cannot be faulted for its finding that the failure by the deceased
to name the appellant at the time that she was burning cannot be
held against her if regard is had to the fact that at the first
opportunity when she was no longer on fire she named the appellant
as the culprit. Furthermore, that this was in the presence of the
appellant at the scene.
Mr
Mapfuwa
cited the case of R
v Andrews
[1987] 1 All ER 513 in support of his argument as regards
spontaneity in cases involving res
gestae.
In his heads of argument he gave the following quote purportedly
from the case but did not give the specific page at which it appears
in the law report:
“the
test used by the courts in determining spontaneity is not necessarily
one of exact spontaneity that is defined with mathematical precision.
It is sufficient to establish approximate or substantial
spontaneity.”
It
was his submission that the court a
quo
correctly observed that to fault the deceased for not mentioning the
appellant's name at the time that she was on fire would be to take
an armchair approach. It was also his submission that it is necessary
to consider the totality of the evidence adduced and ascertain
whether there was a break in the chain of events. He referred
specifically to p26 of the record where the following exchange took
place between the defence counsel and the witness Miti during cross
examination:
“Q.
How many minutes lapsed from the time you heard the scream and the
time that you then saw the now deceased coming from the tap
direction?
A.
Judging from the events it could be less than a minute.”
I
need to point out that in my reading of the judgment in R
v Andrews (supra)
I was unable to locate the quotation cited by Mr Mapfuwa.
I
make note at this stage that Mr Mpofu's
comment on this English authority was that its full content was not
captured in the excerpt quoted by Mr Mapfuwa.
He submitted that the uncaptured aspects are firstly, that if a
statement is made after the event, it ordinarily falls outside
spontaneity. Secondly, if the statement is to be received in
evidence there is a mandatory procedure to be followed in the
Supreme Court of Judicature after which a preliminary ruling must be
made by the judge. Thereafter, evidence of the statement can be
given. He likened the procedure to a trial within a trial in which
the court must deal with and answer what he referred to as the
recurring question “At what stage did this end?” In casu,
so he submitted, because the statement was said after the deceased
had seen a third party, there are dangers that the deceased had had
time for reflection.
In
my reading of the Andrews
judgment I was unable to locate the part of the report that
specifically stipulated or referred to the procedure that he
referred to and which he likened to the procedure of a trial within
a trial (if I understood his submission correctly). The facts in the
Andrews
matter as summarised in the headnote are as follows:
“The
appellant and another man knocked on the door of the victim's flat
and when the victim opened it the appellant stabbed him in the chest
and stomach with a knife and the two men then robbed the flat. The
victim was found some minutes later. The police and they arrived very
soon after. The victim, who was seriously wounded, told the police
that he had been attacked by two men, gave the name of the appellant
and the name and address of the other before becoming unconscious. He
was then taken to hospital where he died two months later. At the
trial of the appellant for murder the Crown sought to have the
victim's statement to the police admitted in evidence. The trial
judge ruled the statement was admissible. The appellant was convicted
of manslaughter. He appealed to the Court of Appeal, contending that
the victim's statement was inadmissible under the rule against the
admission of hearsay evidence. The appeal was dismissed and the
appellant appealed to the House of Lords.
Held
– Hearsay evidence of a statement made to a witness by the victim
of an attack describing how he had received his injuries was
admissible in evidence, as part of the res
gestae,
at the trial of the attacker if the statement was made
in conditions which were sufficiently spontaneous and sufficiently
contemporaneous with the event to preclude the possibility of
concoction or distortion.
In order for the victim's statement to be sufficiently spontaneous
to be admissible it had to be so
closely associated with the event which excited the statement that
the victim's mind was still dominated by the event.
If there was a special feature, eg malice, giving rise to the
possibility of concoction or distortion the
trial judge had to be satisfied that the circumstances were such that
there was no possibility of concoction or distortion.
However, the possibility of error in the facts narrated by the victim
went to the weight to be attached to the statement by the jury and
not to admissibility. Since the victim's statement to the police
was made by a seriously injured man in circumstances which were
spontaneous and contemporaneous with the attack and there was no
possibility of any concoction or fabrication of identification, the
statement had been rightly admitted in evidence. The appeal would
accordingly be dismissed.… Ratten
v R
[1971]
3 All ER 801 applied. R
v Beddington
(1879)
14 Cox CC 341 overruled.” (my emphasis)
I
however found the following useful exposition by Lord WILBERFORCE in
Ratten
v R
[1971] 3 All ER 801 at p807a-e, (a case cited by Lord ACKNER in his
speech):
“The
person testifying to the words used is liable to cross-examination:
the accused person … can give his own account if different. There
is no such difference in kind or substance between what was said and
evidence of what was done (for example between evidence of what the
victim said as to an attack and evidence that he (or she) was seen in
a terrified state or was heard to shriek) as to require a total
rejection of one and admission of the other.
The
possibility of concoction or fabrication, where it exists, is on the
other hand an entirely valid reason for exclusion, and is probably
the real test which judges in fact apply.
In
their Lordships' opinion this should be recognised and applied
directly as the relevant test: the test should not be the uncertain
one whether the making of the statement was in some sense part of the
event or transaction. This may often be difficult to establish: such
external matters as the time which elapses between the events and the
speaking of the words (or vice versa), and differences in location
being relevant factors but not, taken by themselves, decisive
criteria.
As
regards statements made after the event it
must be for the judge,
by preliminary ruling, to satisfy himself that the statement was so
clearly made in circumstances of spontaneity or involvement in the
event that the possibility of concoction can be disregarded.
Conversely, if he considers that the statement was made by
way of narrative of a detached prior event so that the speaker was so
disengaged from it as to be able to construct or adapt his account,
he should exclude it.
And the same must in principle be true of statements made before the
event. The
test should not be the uncertain one, whether the making of the
statement should be regarded as part of the event or transaction.
This may often be difficult to show. But if the drama leading up to
the climax, has commenced and assumed such intensity and pressure
that the utterance can safely be regarded as a true reflection of
what was unrolling or actually happening, it ought to be received.
The
expression 'res
gestae'
may conveniently sum up these criteria, but the reality of them must
always be kept in mind: it is this that lies behind the best reasoned
of the judges' rulings.” (my emphasis)
His
Lordship also referred to the case of O'Hara
v Central SMT Co
1941 SC 363 where at p381 the Lord President (Lord Normand) said
that “there must be close association: the
words should be at least de
recenti
and not after an interval which would allow time for reflection and
concocting a story.”
He further quoted Lord Fleming who at p386 said:
“Obviously
statements
made after there has been time for deliberation are not likely to be
entirely spontaneous,
and may, indeed, be made for the express purpose of concealing the
truth.” (my emphasis)
He
further pertinently states at p808f-g:
“These
authorities show that there is ample support for the principle that
hearsay evidence may be admitted if the statement providing it is
made in such conditions (always being those of approximate but not
exact contemporaneity) of involvement or pressure as to
exclude the possibility of concoction or distortion
to the advantage of the maker or the disadvantage of the accused.”
(my emphasis)
And,
at p809b:
“Facts
differ so greatly that it is impossible to lay down any precise
general rule: it is difficult to imagine a case where there is no
evidence at all of connection between statement and principal event
other than the statement itself, but whether
this is sufficiently shown must be a matter for the trial judge.
Their Lordships would be disposed to agree that, amongst other
things, he may take the statement itself into account.”
(my emphasis)
Finally,
at p808d he stated as follows:
“…
In
an earlier case in the High Court (Brown
v R
(1913)
17 CLR 570) where evidence was excluded, Isaacs and Powers JJ in
their joint judgment (at 597) put
the exclusion on the ground that it was a mere narration respecting a
concluded event, a narration not naturally or spontaneously emanating
from or growing out of the main narration but arising as an
independent and additional transaction.”
(my emphasis)
In
Principles
of Evidence
4ed (Juta) the learned authors Schwikkard
and van der Merwe,
under the heading “Res
gestae
statements” state that the phrase res
gestae
does not lend itself to any meaningful translation but that the
phrase has developed a meaning in the law of evidence and is
succinctly stated by Choo (in Evidence
(2012) 292) as follows:
“Evidence
of facts may be admissible as part of the res
gestae
if these facts are so closely connected in time, place and
circumstances with some transaction which is at issue that they can
be said to form part of that transaction.”
Under
the subheading “Spontaneous statements” the learned authors state
that the reasoning behind the admission of spontaneous statements was
that despite their hearsay nature, they are the product of an
instinctive response and therefore less likely to be an invention or
deliberate distortion. Furthermore, for the statement to be regarded
as spontaneous it must be so closely linked to the event which gave
rise to it that the presiding officer is able to conclude that the
“event” dominated the mind of the declarant at the time of
uttering the statement.
The
learned authors further refer to the case of S
v Tuge
1966 (4) SA 565 (A) wherein “[T]he court held that the following
conditions needed to exist for a res
gestae
statement to be admitted into evidence: (a) 'the original speaker
must be shown to be unavailable as a witness'; (b) 'there must
have been an occurrence which produced a stress of nervous
excitement'; (c) 'the statement must have been made whilst the
stress was still “so operative on the speaker that his reflective
powers may be assumed to have been in abeyance”'; (d) 'the
statement must not amount to a reconstruction of a past event'”
Against
the above backdrop of the position of the law relating to res
gestae
I am unable to find fault with the manner in which the court a
quo
dealt with the issue of res
gestae
when it stated as follows:
“Res
gestae
should be applied taking into account the circumstances of each case.
In casu, the undisputed evidence was that the deceased screamed out
and footsteps were heard proceeding to the tap and immediately on
returning from the tap, the deceased made the accusation that the
cause of the fiasco was the accused. To hold as argued by the
defence, that the deceased should have exclaimed that the accused (by
name) had burnt her at the time of the burning would be to adopt an
armchair approach. The deceased named the accused at the first
opportune time after she was no longer on fire. It cannot be said
that there was no spontaneity in the exclamation.”
As
with any other matter, each case must be decided on its own merits.
In
casu,
on a view of the evidence adduced before the trial court and on a
consideration of the manner in which the events unfolded as well as
the time frame within which it all happened, the court a
quo
cannot be faulted when it stated that “(I)t cannot be said that
there was no spontaneity in the exclamation.” As commented by Lord
Wilberforce at p806h-j:
“The
reason why this is so (that is the application of different standards
to the admissibility of the hearsay statement) is that concentration
tends to be focused on the opaque or at least imprecise Latin phrase
rather than on the basic reason for excluding the type of evidence
which this group of cases is concerned with. There is no doubt what
this reason is: it is twofold. The first is that there may be
uncertainty as to the exact words used because of their transmission
through the evidence of another person than the speaker. The second
is because of the risk of concoction of false evidence by persons who
have been the victim of assault or accident.”
As
to the actual words used by the deceased, the court a
quo
cannot be faulted for believing the State witnesses. The appellant
did not dispute the evidence of the State witnesses as to what was
uttered whilst the witnesses were still in their room. He would
naturally not have been able to challenge the witnesses as his
evidence was that he could not make out what the deceased was saying
as she was screaming. The witnesses said that they were awoken by
the deceased's screaming out “oh mother I am dying!” as well
as calling out to the first witness by the deceased. Further, the
appellant did not dispute that the deceased uttered the words
attributed to her by the witnesses after she came back from the tap
at the back of the rooms and soon after the fire on her had been
extinguished. The deceased had burn injuries and as a result her
undergarment was sticking onto her body. It is at that stage in the
unfolding drama that the deceased said that the appellant had poured
paraffin on her and set her alight and that he had the match box on
him. As it turned out the box of matches was recovered from the
appellant when he was subjected to a bodily search by the police,
albeit
he had a different explanation for his possession of it. The
deceased also asked why the appellant had not also poured paraffin
on himself as he had said that he wanted both of them to die.
According to Tsopotsa she also said to the appellant that he should
finish her off as he had been tormenting or ill-treating her for a
long time.
There
is another consideration that buttresses the court a
quo's
assessment of the evidence that was placed before it. Notably, it
was the appellant's stance that all that the deceased said in the
presence of the State witnesses were all lies. By implication, the
appellant's contention was that the deceased deliberately
concocted a false story, to his disadvantage. It was thus the
defence's argument that the said utterances ought not to have been
accepted or admitted as part of the res
gestae.
On this aspect the trial court dispelled the risk of concoction on
the view that to hold otherwise would be to adopt or take an
armchair approach. I find no misdirection by the court a
quo
in this regard on a view of the evidence that was placed before it.
The
citation by the defence of the case of Thompson
v Trevanion
(1693) Skin 402 ER 179 does not in my view establish any
misdirection by the trial court in this regard. I say so for the
reason, as already stated earlier, that it is trite that each case
must be determined on its own merits. In the appellant's heads of
argument the following statement by HOLT CJ in the cited case is
quoted:
“What
the wife said immediate upon the hurt received, and before she had
time to devise or contrive anything for her own advantage might be
given in evidence.”
The
court was alive to the fact that it was dealing with circumstantial
evidence there being no independent witness to testify as to how the
deceased ended up in flames. It rightly drew the applicable legal
principles as espoused in R
v Blom
1939 AD 188 and followed in Zacharia
Amos Simango v S
SC42/14, Abraham
Mbovora v S
SC75/14. The two cardinal rules on circumstantial evidence have been
stated to be:
“1.
The inference to be drawn must be consistent with all the proven
facts.
2.
The proven facts should be such that they exclude every possible
inference from them save the one to be drawn.”
The
court isolated the issue that needed to be answered by the
circumstantial evidence, viz, “whether or not the deceased poured
paraffin upon and burnt herself or it was the accused who set her
alight after pouring paraffin on her.”
On
the evidence that was placed before the trial court there are
certain baseline facts that stand out. The appellant was the only
person with the deceased in her room when she called out the first
witness' name and screamed. The deceased did not call for
assistance from the appellant, whether on the appellant's evidence
or on the evidence of the State witnesses. She called out to Miti.
The appellant himself, a frequent visitor to the premises according
to the evidence of the State witnesses, did not call out for help
from the deceased's neighbours who he must have known to be in
their own rooms. Thereafter the deceased pointed to the appellant as
the person who had doused her with paraffin and set her on fire.
Another notable aspect is that the appellant said that the deceased
got dressed in a skirt and blouse when he indicated that he wanted
to have a discussion with her. But when the deceased was seen by her
neighbours when they reacted to her distress call she was observed
wearing only a petticoat that was now stuck to her body due to the
burning. There was no explanation by the appellant as to how the
skirt that he found burning on the floor after he came back to the
room had got there.
In
the circumstances, I find no misdirection on the part of the court a
quo
when it found as follows:
“…
The
complainant was heard screaming and calling out to neighbours. She
did not call out to the accused person. If indeed the deceased had
burnt herself and the accused had nothing to do with it, assuming
that she was crying out for help because of pain, she would have been
expected to call out to the person who was nearest to and in her
presence to assist her or come to her aide (sic). It was most
improbable that the deceased would in the process of seeking
assistance have reached for people far away from her.”
The
court a
quo
correctly
noted that the appellant came to visit the deceased in the dead of
night and that he had a grievance that he wanted to raise with her
about her reported behaviour. It was the trial court's finding
that the appellant must have been incensed and that his
interrogation of the deceased was unlikely to have been amicable as
he wanted the court to believe. The trial court found the
appellant's narration of events as regards the deceased's
reaction to his questions to be “illogical and improbable to a
point that it can safely be said not to have happened.” The court
found it to be improbable that after she was asked as to why she
went to bars in the absence of the appellant, she responded by
pouring paraffin on herself and setting herself alight. I find no
misdirection in this finding by the court a
quo.
In
assessing the sufficiency of the circumstantial evidence that was
placed before it, the court a
quo
drew guidance from firstly, the cases of R
v Sibanda & Others
1965 (4) SA 241 (R.A.) where at p246 BEADLE CJ, dealing with
circumstantial evidence, stated as follows:
“The
degree of certainty with which the individual facts must be proved in
criminal cases must always depend on the probative value of the
individual facts themselves. Generally speaking, when a large number
of facts taken together, point to the guilt of an accused, it is not
necessary that each fact should be taken in isolation and its
existence proved beyond a reasonable doubt. It is sufficient if there
are reasonable grounds for taking these facts into consideration and
all the facts, taken together prove the guilt of an accused beyond a
reasonable doubt.”
It
also referred to S
v Chabalala
2003 (1) SACR 134 (SCA) in which at para 15 the following is stated:
“The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and
having done so, to decide whether the balance weighs so heavily in
favour of the state as to exclude any reasonable doubt about the
accused's guilt. The result may prove that one scrap of evidence or
one defect in the case for either party (such as the failure to call
a material witness concerning an identification parade) was decisive
but that can only be an ex-post
facto
determination and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it within the
context of the full picture presented in evidence.
once that approach is applied to the evidence in the present matter,
the solution becomes clear.” (my emphasis)
The
findings made by the court a
quo
must be viewed against the trite position at law that as the trial
court, it had the advantage of seeing and hearing the witnesses as
they testified to the events of the night in question. That is an
advantage that an appellate court does not have. An appellate court
hears an appeal on the record and cannot disregard findings made a
quo
unless a reading of the record patently does not support such
findings. There is no patent misdirection in the findings of the
court a
quo
discernible on a reading of the record.
The
court a
quo's
finding on the appellant's demeanour as a witness has an important
bearing on the determination of his guilt by the court, particularly
in circumstances where the court had found that the State had
established a prima facie
case
against him and that he had to be put on his defence. Commenting on
the appellant's demeanour the court a
quo
stated:
“…
he
showed some degree of annoyance and irritability when giving evidence
and answers in cross examination. The court got the impression that
the accused considered the trial and his being asked to give an
account of events as an unnecessary bother. He appeared not to be a
concerned person with the proceedings yet the victim was his second
wife as per
his testimony. The accused's demeanour was adjudged not to be
impressive.”
This
finding on the appellant's demeanour by the court a
quo
is
supported and borne out by a reading of the appellant's Confirmed
Warned and Cautioned statement, his Defence Outline and his
testimony in court both in chief and in cross examination. In the
Warned and Cautioned statement, he said that after she had set
herself alight the deceased embraced him and he opened the door
while she was still embracing him. When he opened the door the fire
“burned heavily” and she ran to the tap where “she poured some
water on her” and he followed her and helped her to extinguish the
fire. In his Defence Outline he said that after setting herself on
fire the deceased “sought to embrace him intending to cause harm
to him but he managed to slip away going out of the room.” He said
that he also assisted the deceased to put out the fire by pouring
some water on her at the water tap. In his evidence before the court
a
quo
he said that the deceased wanted to grab him by the neck but she
missed and grabbed hold of the upper arm of one hand. He further
stated that she got “hold of me in an indication that she did not
want to let me go. It was then that I also caught the fire such that
I also suffered injuries. I realised that the fire was quite great
and that my life was also in danger that is when I decided to open
the door whilst she was still holding me. I then advised her that
she had to go to the tap so that I put out the fire. She get hold of
me as we were by the door and she was now in front. When we got to
the tap I instructed her to kneel down, I opened the tap and there
was now water that was being poured on her head and all the body.”
The
discrepancies in the extra curial statement, the defence outline and
the evidence in court in the respect highlighted above cannot be
missed. Significantly, the unexplained discrepancies relate to a
stage in the unfolding events that only he could give clear evidence
on. He did not.
In
the circumstances, I find no misdirection or error in the court a
quo's
assessment of the appellant's demeanour.
The
issue that has been raised in relation to the rejection of the
appellant's defence by the court a
quo
must not be considered in isolation. The court was obliged, as it
rightly noted, to consider the totality of the evidence before it.
Its reliance on the case of S
v Isolano
1985 (2) ZLR 62 (SC) in this regard cannot be faulted. Therein LORD
DENNING was quoted when he stated as follows in Miller
v Minister of Pensions
[1947] All ER 372 (KB):
“…
the
evidence must reach the same degree of cogency as is required in a
criminal case before an accused person is found guilty. The degree is
well settled. It need not reach certainty but it must carry a high
degree of probability. Proof beyond a reasonable doubt does not mean
proof beyond the shadow of a doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course
of justice. If the evidence is so strong against a man as to leave
only a remote possibility in his favour which can be dismissed with
the sentence of course it is possible, but not in the least probable,
the case is proved beyond reasonable doubt, but nothing short of this
will suffice.”
The
court a
quo
found that on a consideration of the evidence before it and having
derived guidance from the authorities, the State had proved the
appellant's guilt beyond reasonable doubt and it therefore
convicted him of murder with constructive intent.
In
the absence of misdirection by the trial court there is no basis for
this court to interfere with the conviction.
No
submissions having been made in relation to sentence, this will be
taken as a concession that the appeal against sentence has no merit.
No basis has been established for interference with the same.
Consequently,
it is thus found that there is no merit in this appeal. It is
accordingly ordered as follows:
The
appeal be and is hereby dismissed in its entirety.
UCHENA
JA: I
agree
MAKONI
JA: I
agree
Rubaya
and Chatambudza,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
