This is an automatic appeal against the decision of the court a quo convicting the appellant of murder in terms of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ('the Act') and sentencing him to death.
After hearing submissions from both counsel, the Court, for reasons to be availed later, dismissed the appeal against both conviction and sentence. The said reasons now appear hereunder.
FACTUAL BACKGROUND
The appellant and one Taurai Tsikudzawo (also sometimes spelt as Tsikuzawo in the record of proceedings) were charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).
The allegations against them were that on the 7th of December 2010, and at around 2100hrs, the appellant and his co-accused, while pretending to be customers, entered Zemba Store, a shop belonging to one Alex Jomboro (the deceased) at Kandeya Township, Mt Darwin. The deceased was behind the counter when one of the accused persons jumped over the counter and demanded cash from him.
The deceased failed to produce any money and one of the accused persons shot him.
Tazvitya Dzimbire, the deceased's security guard, escaped from the shop before the shooting happened, leaving the accused persons alone with the deceased.
One Detective Sergeant Mutyambizi, who was at Kandeya Township, heard the gun shots and rushed to the deceased's shop. He found the deceased lying in a pool of blood. The accused persons had fled. The detective also found two spent cartridge cases from a pistol. He proceeded to contact and inform the Police (ZRP) at Mt Darwin of the incident and facilitated the movement of the deceased to Mt Darwin Hospital where he was confirmed dead on arrival by Doctor Gwagwa who, on 8 December 2010, carried out a post mortem examination of the deceased's remains.
The postmortem report recorded that the examination had established that the deceased had died from a gunshot wound to the head.
A bullet was recovered from the deceased's head and was referred to CID Forensic Ballistics department for examination. The forensic examination of the bullet established that it had been fired from a CZ pistol serial number 9136T which had been stolen from one Bakaris Kostantinos Costas, the owner of a supermarket in Ruwa on 23 June 2010.
THE APPELLANT'S ARREST
Sometime during the period spanning 1 March 2011 to 3 March 2011, the appellant was arrested together with one Justin Momela, Thembinkosi Matutu, and Taurai Tsikudzawo by the ZRP Criminal Investigation Department (CID), Harare in connection with crimes of robbery and murder.
The four accused were interviewed by the CID officers and the appellant confessed to have been in possession of the CZ pistol serial number 9136T, this being the firearm with which the deceased was shot and killed.
Evidence adduced by the State was to the effect, that, on 3 March 2011, the appellant volunteered to lead police details to a place near Ruwa Rehabilitation Centre where he claimed and indicated that he had hidden the firearm that had been stolen from the owner of Ruwa Supermarket during the execution of a robbery.
The appellant failed to locate the firearm at that place and advised the police that the firearm may have been taken by Taurai Tsikudzawo who was with him when he hid it.
He thereafter led the police to Tsikudzawo's residence, which was about 20/25 to 30 metres away from his own. Tsikudzawo was arrested after which he led the police to a place where he had hidden the firearm after learning of the appellant's arrest.
The place where it was recovered was about 1.5km from their residences which, as already stated, are within 25 to 30 metres of each other.
THE APPELLANT'S DEFENCE
The appellant raised the defence of alibi, claiming that he had spent all his days, including the day of the deceased's murder, helping his brother, Marvellous Madya, who is a mechanic, repairing motor vehicles.
As to how he became implicated in this case, his explanation was that one Justin Momela brought a motor vehicle for repairs to be carried out by the appellant's brother. Justin Momela was advised that the motor vehicle required another battery. The appellant then gave Justin Momela a second-hand battery, and, in return, Justin Momela gave the appellant a mobile phone as security, pending payment for the battery.
When Justin Momela failed to pay for the battery, the appellant sold the mobile phone to one Spencer Muuya.
When Spencer Muuya was found in possession of the mobile phone, he implicated the appellant.
He further stated, significantly, and rather curiously too, that he only got to know Taurai Tsikudzawo after the latter was arrested through Justin Momela, who, as it turned out, and according to the appellant himself, is also known as Justin Tsikudzawo.
He denied having led the police to the recovery of the firearm, claiming that he was only seated in the police vehicle when the police were led by Taurai Tsikudzawo to the place where the weapon was hidden.
He further averred, that, he was arrested on the basis that he had had in his possession a phone which had been stolen during a robbery.
THE JUDGMENT OF THE COURT A QUO
The court a quo noted, that, in his Defence Outline, the appellant stated that Justin Momela is also known as Justin Tsikudzawo. The court was of the view, that, this meant that the said Justin Momela was probably related to Taurai Tsikudzawo.
The court a quo also noted, that, although the appellant stated in his Defence Outline that on the date that the offence was committed he was in Ruwa and spent the night with his brother, Marvellous Madya, the said brother was not called to testify.
In addition, the appellant was, in his oral evidence before the court, non-committal regarding his whereabouts or movements on that day, including the evening.
After analysing all the evidence adduced before it, the court a quo found:
“That, the accused (appellant) is the one who had possession of the firearm used to murder the deceased, and that he had hidden it but found it having been removed by Taurai Tsikudzawo, and that he was able to lead the police to the person who had changed the place where the weapon was hidden; the absence of any explanation as to how he came to be in possession of the firearm renders any suggestion that another person may have used the weapon to kill the deceased fanciful and speculative. The court is convinced, that, beyond reasonable doubt, the case against the accused person has been proved; namely, that he is the one who unlawfully and intentionally killed Alex Jomboro. In the result, the accused is found guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”
The appellant was thereafter sentenced to death.
THIS APPEAL
This appeal is against both conviction and sentence and the following grounds of appeal have been raised:
GROUNDS OF APPEAL
“1. The court a quo erred in finding, that, the appellant murdered the deceased as he is the one who led the police to Taurai from whom the firearm was recovered.
Such circumstantial evidence was improperly admitted as the fact sought to be proved, that, the appellant was in possession of the firearm therefore he is the one who shot the deceased was not consistent with all proven facts and there are other reasonable inferences that can be drawn particularly considering that at one time Taurai was in possession of the gun.
The court a quo ought to have established if indeed Taurai came into possession of the firearm and the date thereof against the date on which the offence was committed so as to determine if the appellant was in physical possession of the firearm on the date the offense was committed or it was Taurai Tsikudzawo who allegedly came into possession of the gun and skipped bail upon arrest.
2. The court a quo erred in dismissing the appellant's alibi on the basis that he failed to explain what he was doing around 21:00hrs on the 10th of December 2010 when the offense was committed. The appellant's explanation was concrete and the court ought to have considered the lapse of time which rendered it difficult for appellant to recall what he was doing on a date more than 6 years ago; the court should not have relied on the appellant's failure to state exactly what he was doing on that date, and at that particular time, in dismissing his alibi considering the appellant's right to a fair trial within a reasonable time whilst he still recollect (sic) events, time, and dates.
3. The court a quo erred in exercising its discretion by sentencing the appellant to death notwithstanding the extenuating circumstances and the mitigatory factors advanced by the appellant, particularly his youthfulness.”
The relief sought by the appellant was for his conviction to be set aside and that he be found not guilty and acquitted. Alternatively, that the sentence of death be set aside and substituted with “any other custodial sentence the court deems appropriate.”
SUBMISSIONS BEFORE THIS COURT
The appellant's submissions
Counsel for the appellant submitted, that, the conviction was not justified, regard being had to the rules and principles relating to the assessment and treatment of circumstantial evidence.
Reliance was placed on R v Blom 1939 AD 188 per WATERMEYER JA and State v Muyanga HH79-13 per HUNGWE J.
In R v Blom 1939 AD 188, the requirements were formulated in the following manner:
“(a) The inference sought to be drawn must be consistent with all the proven facts: if it is not, the inference cannot be drawn.
(b) The proven facts should be such that they exclude every reasonable inference from them save the one sought to be drawn: if these proved facts do not exclude all other reasonable inferences, then, there must be a doubt whether the inference sought to be drawn is correct.”
In State v Muyanga HH79-13, the requirements for a conviction to be justified in a case that rests upon circumstantial evidence were articulated thus:
“(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no-one else; and
(4) The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation by any other hypothesis than that of the guilt of the accused, and, such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”
Counsel submitted, that, the court a quo erred in finding that the appellant failed to explain his possession of the firearm which was used to commit the crime. He argued, that, the firearm was recovered in Ruwa on the indications of Taurai Tsikudzawo and that the appellant had no control of it at the time when the crime was committed because it had been removed from the place where he had initially hidden it near Ruwa Rehabilitation Centre.
Counsel maintained, that, the ballistics report, in itself, was not proof of the appellant having been in possession of the firearm at the time of the commission of the crime.
He also submitted, that, the appellant denied or disputed the evidence of Detective Assistant Inspector Mutata, the investigating officer, who testified that the appellant admitted that he had committed the robbery at Ruwa Supermarket where a CZ pistol and cash were stolen and also offered to, and did lead the police officers to the place where he claimed to have hidden the pistol, at some spot along the pre-cast wall at Ruwa Rehabilitation Centre.
With regards to the appellant's defence of alibi, counsel argued that the court a quo ought to have appreciated that the appellant had forgotten some of the events of the day when the crime was committed due to passage of time.
It was also submitted, that, as there was no onus on the appellant to convince the court of any explanation, he ought to have been acquitted as there was a possibility of his explanation being true.
For this proposition reliance was placed on R v Difford 1937 AD 370 where it was stated, that, there is no onus that rests on the accused to convince the court of any explanation - even if that explanation is improbable. Further, that the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but, beyond doubt, that it is false. It was also stated therein, that, if there is any possibility of the explanation being true, then, the accused has to be acquitted.
The judgment of the court a quo was further criticized on the basis, that, the State ought to have, but did not, place before the court, the court record CRB685/11 which would have shown that evidence was led to the effect that the appellant was not charged for the Ruwa Supermarket robbery as he was exonerated by the other accused persons.
The mainstay of the criticism was that there was a second person who had control over the firearm and who could have used it on the day of the murder. Furthermore, that any other person could have used the firearm, and, without evidence of the appellant's possession of it prior to the commission of the murder, it left the evidence “short of the thread of beyond reasonable doubt.”
The court a quo was thus criticized for having unfairly dismissed the appellant's alibi.
With regard to sentence, the contention made on behalf of the appellant was that the court a quo erred by paying lip service to the delay in bringing the appellant to trial; the trial having commenced and ended in 2017, after a period of 7 years.
THE RESPONDENT'S SUBMISSIONS
Per contra, counsel for the respondent contended, that, the court a quo did not misdirect itself when it found that, beyond reasonable doubt, the appellant was the one who unlawfully and intentionally killed the deceased, and, as a result, returned a verdict of guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act.
Counsel for the respondent submitted, that, the court a quo did not err in its finding that the appellant was guilty of the charge of murder.
Counsel argued, that, the appellant was fabricating his story as he stated before the court a quo that he was not involved in the robbery in Ruwa, denied leading the police to the place where he hid the firearm, and leading the police to Taurai Tsikudzawo.
However, before this Court, the appellant changed his story and stated that he hid the firearm which was later removed from the place where he had hidden it and that he was only involved in the robbery in Ruwa and not the murder in Mount Darwin.
It was submitted on behalf of the respondent, that, the authorities are clear that 'beyond reasonable doubt' does not mean 'beyond a shadow of doubt.'
It was also submitted, that, the absence of any explanation by the appellant as to how he came to be in possession of the firearm, renders any suggestion and insinuation that another person may have used the weapon to kill the deceased, fanciful and speculative.
It was also argued, that, it was significant that the appellant knew the person who had removed the firearm from a particular place and was the one who led the police to that person, and, consequently, the recovery of the firearm.
The other significant factor was the fact that the appellant's and Taurai Tsikudzawo's residences are within the same area.
Counsel submitted, that, the fact that the appellant led the police to Taurai Tsikudzawo showed that he knew him.
Counsel also submitted, that, the appellant's connection with the firearm was established by the evidence led before the court a quo. Thus, in the absence of an explanation of his possession of the firearm, the court properly came to the conclusion that it was the appellant who fired the shot that killed the deceased.
Counsel submitted, that, the appellant's testimony could not be trusted.
On the issue of the alibi, counsel submitted that the appellant ought to have called his brother to testify at the trial as his brother could have supported his version of events.
ISSUE FOR DETERMINATION BEFORE THIS COURT
The issue for determination before this court is whether or not the court a quo erred in finding the appellant guilty of murder in terms of section 47 of the Criminal Law (Codification and Reform) Act and thereafter sentencing him to death.
ANALYSIS
(a) Conviction
It is common cause, that, as there was no direct evidence of the shooting of the deceased on the night in question, the appellant was convicted on the basis of circumstantial evidence.
The court a quo, in convicting the appellant of murder, weighed the totality of the evidence placed before it.
From a perusal of the court a quo's judgment, as confirmed by the record of proceedings, the following facts are common cause, or stand uncontroverted:
(i) That, on 7 December 2010 the deceased died as a result of injuries which he sustained after being shot with a gun;
(ii) That, the persons who shot the deceased entered his shop at night and demanded money before shooting him;
(iii) That, the weapon used to shoot the deceased was confirmed by a ballistics examination to be the one that the police recovered at Ruwa and that the exact location of the firearm when it was recovered was pointed out by, or more accurately, with the active participation of Taurai Tsikudzawo.
The court a quo aptly commented:
“What is in contention is whether the police, who were investigating the issue of the firearm, were led to its recovery by the accused person. If the accused indeed led the police to recover the firearm, the next issue arises, namely, whether the recovery of the firearm, through the indications of the accused person, links him to the murder of the deceased.
The evidence of Previous Mutata (the investigating officer) was that the accused person is the one who led them to Ruwa and when he failed to locate the firearm at the place where he had hidden it he then led the police to the residence of his friend, Taurai Tsikudzawo, whom he believed to have removed the pistol to some other place.
Through the involvement of Taurai Tsikudzawo, the police were then able to recover the firearm.
That evidence has not been challenged by the accused person.
What the accused sought to do was to suggest that he himself was not the one who pointed out the place where the firearm was.
The accused person did not dispute that he is the one who led the police to the residence of Taurai Tsikudzawo.
He states, that, he was only seated in the motor vehicle when the police were led, by Taurai Tsikudzawo, to the place where the weapon was hidden. That version accords with the evidence of Previous Mutata insofar as it illustrates that the accused person was indeed present when Tsikudzawo went with the police to the place where he had hidden the firearm following the arrest of the accused.
The accused suggests that he was only arrested because he had been given a mobile phone belonging to Justin Momela to whom he had sold a car battery.”
The court further noted:
“His connection to the recovery of the firearm was established by the evidence led.
If he was not the one leading them to Ruwa and Taurai Tsikudzawo's residence, the police officers would have had no reason to have him in their motor vehicle. He does not explain what he was doing in that motor vehicle.
The accused exhibited so much knowledge about the other cases involving Justin Momela and Taurai Tsikudzawo, but does not explain his connection to them.
The evidence placed before this court shows that his residence is within the same area as that of Taurai Tsikudzawo. It makes sense then that he knew Taurai Tsikudzawo, and is the one who led the police to his residence.
It does not matter that he is not the one who actually pointed out where the firearm had been hidden. He would not have known that since, as Previous Mutata explained, it had been removed by Taurai Tsikudzawo.
If, as the accused would like the court to believe, the police had intended to falsely implicate him, they would have simply stated that he is the one who pointed out where the firearm was to them without involving Taurai Tsikudzawo.
The accused is the one who knew the person who had removed the firearm. He led the police to that person, and the firearm was recovered.
He has not explained his possession of that firearm or how he came to be involved with it.
The firearm is the weapon that was used to kill the deceased. The evidence of the Forensic Ballistics Reports was not challenged.
In the absence of an explanation of his possession of the firearm, the court is entitled to come to the conclusion that the accused is the one who fired the shot that killed the deceased.”…,.
The court a quo further made the observation, that, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.
The court found that a combination of the following factors pointed to the appellant's guilt. These are:
(i) That the appellant was the one who had possession of the firearm used to murder the deceased; and
(ii) That he had hidden it but found it having been removed by Taurai Tsikudzawo; and
(iii) That he was able to lead the police to the person (Taurai Tsikudzawo) who had changed the place where the weapon was previously hidden;
(iv) The absence of any explanation as to how he (appellant) came to be in possession of the firearm, rendering any suggestion that another person may have used the weapon to kill the deceased fanciful, speculative, and not worthy of belief.
The court a quo also rightly noted, against the appellant, that, he failed to explain what he was doing in the police motor vehicle or his connection to Justin Momela and Taurai Tsikudzawo although he had exhibited so much knowledge about the other cases involving them.
These factual findings were made by the court a quo based on the evidence placed before it. The trial court had the privilege of watching the witnesses on the stand - including the appellant himself. It had the privilege of assessing their demeanour and credibility.
This Court cannot interfere with the findings of fact made by the trial court in the absence of gross misdirection thereof.
In IDBZ v Engen Petroleum Zimbabwe (Pvt) Ltd SC16-20 the Court held that:
“It is a settled principle that the Court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable: see ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v NRZ 1996 (1) ZLR 664 (S); Reserve Bank of Zimbabwe v Corrine Granger & Anor SC34-01.”
At the end of the day, the court a quo found that the State had proved, beyond reasonable doubt, the allegations against the appellant and therefore convicted him accordingly.
To the court, it therefore did not matter that he was not the one who actually pointed out where the firearm had been hidden. Also of significance was the fact that the firearm was obtained through a robbery that occurred in June 2010. The appellant confessed that he was in possession of the firearm thereafter but hid it, and Taurai Tsikudzawo only removed it from where he had hidden it after the appellant was arrested in March 2011.
As already stated earlier, the court a quo finally stated:
“The court is convinced that, beyond reasonable doubt, the case against the accused person has been proved, namely, that he is the one who unlawfully and intentionally killed the deceased, Alex Jomboro. In the result, the accused is found guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”
The court a quo's analysis cannot be faulted. Its cogency is borne out by the evidence on record.
In attempting to analyse the judgment of the court a quo, it is realized that because of its cogency, there is a grave risk of merely further regurgitating or re-iterating the court a quo's analysis. That, in the court's view, is not necessary.
The only inference that can be drawn from the totality of the evidence that was adduced before the court a quo is that the appellant committed the offence.
The court a quo has not been shown to have misdirected itself.
The cumulative effect of the facts elicited from the evidence placed before the court a quo is, in the court's view, to show that the respondent managed to prove, beyond a reasonable doubt, that the appellant indeed committed the murder as alleged.
The court a quo's analysis of the evidence placed before it stands solid and unshaken, even in the face of the scrutiny urged by the grounds of appeal and submissions made on behalf of the appellant.
It can also be said that the appellant's failure, in the particular circumstances of this case, to call his brother to testify as a witness in support of his alibi, tends to negate his defence in the face of the cogent evidence adduced by the State against him.
The appellant dismally failed in his evidence before the court a quo, to give a clear account of where he was on that particular day. In addition, he did not call his brother to testify or lead any further evidence to substantiate his defence that he was with his brother on that fateful day.
The court a quo was thus left with no other option but to consider the evidence placed before it and finally coming to the conclusion that culminated in the conviction of the appellant.
In the court's view, the court a quo did not misdirect itself in any way.
More damning for him, the appellant failed to give an explanation on how he knew where the gun was hidden or who had removed it from that place.
Against all this background, it can safely be said that he led the police to its recovery.
In State v Muyanga HH79-13, the court stated the following:
“The correct approach is first to determine what facts are established by the evidence. The court must then consider all of those facts together as a whole and ask whether it can be concluded, from those facts, that the accused is guilty of the offence charged.
If such a conclusion does not reasonably arise, then, the State's circumstantial case fails because there is no proof of guilt beyond reasonable doubt.
But, if the court finds that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then, before it can convict the accused, it must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the State says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because there is no proof beyond reasonable doubt of the accused's guilt.”…,.
The appellant's conviction is safe and this court, as an Appellate Court, finds no justification for interfering with it.
The conviction is therefore hereby confirmed.
