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
(b) Sentence
The appellant having been convicted of murder in the course of a robbery, the court a quo went on to assess and determine the appropriate sentence in the circumstances.
The court a quo stated that:
“[T]he murder was clearly committed in aggravating circumstances, as it was committed in the course of a robbery.”
It also commented as follows:
“While the court accepts that the Constitution of Zimbabwe 2013 gives it a discretion not to impose the death penalty, and that the law was subsequently amended to give statutory recognition to that discretion, the court considers that there are no grounds justifying the imposition of a penalty less than sentence of death. It would be an improper exercise of judicial discretion for the court to impose a sentence less than death in the circumstances of this case.…,.
In all the circumstances, the court finds, that, the accused has not shown good reasons or cause why sentence of death should not be passed upon him.
In the result, sentence of death is passed upon the accused.”
While the court a quo made reference to the 2013 Constitution and also made an oblique reference to the General Laws Amendment Act 3 of 2016 which made provision for the amendment of section 47 of the Criminal Law (Codification and Reform) Act (Criminal Law Code), such was not necessary.
This is so because section 18(9) of the 6th Schedule to the 2013 Constitution provides as follows:
“(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced, but —
(a) The procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and
(b) The procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of Chapter 4 of this Constitution.
(10) For the purposes of subparagraph (9) —
(a) A criminal case is deemed to have commenced when the accused person pleaded to the charge;
(b) A civil case is deemed to have commenced when the summons was issued or the application was filed, as the case may be.”…,.
In casu, the offence having been committed in 2010, the court a quo ought to have relied on the procedure that was applicable as at that time.
The 2013 Constitution, and the amendments made to section 47 of the Criminal Law (Codification and Reform) Act and sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], had no role to play in the matter that was before it.
In terms of the applicable law, the court had no discretion but to pass a sentence of death on a conviction for murder where there were no extenuating factors.
A reading of the facts in this matter leaves no doubt that there were no extenuating factors attendant on the murder for which the appellant was convicted.
The appellant and his accomplice, who was still at large when the appellant was brought to trial, agreed and planned to commit a robbery. They purposely embarked on a journey to Mt Darwin where they entered the deceased's shop at night.
They were armed.
One of them jumped over the counter, demanded money from the deceased before callously shooting him at close range after failing to get the desired response to his demand.
The deceased was minding his own personal and lawful business of running his shop. The appellant and his colleague brazenly and unashamedly felt entitled to the proceeds of the deceased's sweat. They showed no respect for the sanctity of human life. The deceased needlessly and unfairly lost his life merely because he was working to earn a living as all law-abiding citizens must do. Undoubtedly, his family was negatively affected in various ways by this untimely demise.
In current parlance, Zimbabwe is open for business. It is open for business not only to foreigners but also, if not more so, to Zimbabwean nationals.
The adage that crime does not pay is not a hollow statement. Money is not snatched from those who have worked for it - it is earned by hard work.
The appellant was, at the relevant time, of an age that would normally be expected to have all the energy to work in order to lawfully earn a living.
The deceased, who was far older, was terrorised and killed by the appellant in a show of callous disregard to the deceased's right to life and to property.
In casu, the finding by the court a quo that the murder of the deceased was committed in aggravating circumstances cannot be faulted.
The appellant shot the deceased point blank in the course of a robbery.
Murder committed in the course of a robbery has always been viewed, by these courts, as murder committed in aggravating circumstances.
The court a quo cannot be faulted in viewing it accordingly.
The deceased succumbed to the gun shot. The appellant had pre-meditated this offence by arming himself with the firearm before entering the deceased's shop for purposes of committing a robbery.
Before the court a quo, the appellant sought, in mitigation, to rely on the fact that he was 25 years of age at the time of the commission of the murder hence his youthfulness ought to have been taken into consideration.
In Norman Sibanda v The State SC39-14 counsel for the State successfully argued, and the appellant's counsel properly conceded, that, youthfulness would ordinarily constitute an extenuating circumstance only if the actions of the offender are consistent with immaturity.
However, in casu, the appellant cannot take refuge behind his age.
On the aspect of the appellant having been 25 years old at the time that he committed the offence in 2010, the court did not accept that at the age of 25 the appellant failed to appreciate the implications and consequences of his conduct when he carried a firearm and deliberately shot his victim.
We find no fault in this assessment by the court a quo.
It is also the court's view, that, at 25 years of age, a person has the capacity to decipher wrong from right.
In any event, the facts of this matter are not consistent with immaturity emanating from youthfulness. To hold otherwise would only serve to create a state of chaos in society given the prevalence of the commission of offences by those of youthful age.
It is significant, in this regard, that the court a quo also noted that there was careful planning and execution of the murder as the appellant carried the weapon himself to the scene of the crime.
That type of conduct is consistent with adulthood rather than juvenile immaturity.
In the court's view, the appellant did not succeed in showing that the sentence imposed by the court a quo warranted interference by the Appeal Court. As has been already alluded to, this is a case where a robbery escalated to murder in aggravating circumstances.
The appellant's appeal against sentence thus lacks merit and ought to be dismissed.
