MAVANGIRA
AJA:
On
5 October 2006 the High Court found the appellant guilty of the
murder of Johannes Mapfumo Majoni with actual intent to kill him. The
court a
quo
found
no extenuating circumstances. It therefore sentenced the appellant to
death.
This
is an automatic appeal against both conviction and sentence.
It
was the State case that the appellant shot and killed the deceased.
There was no direct evidence against the appellant, the State relying
on circumstantial evidence.
The
undisputed facts are that in the afternoon of 14 April 2005 a man
armed with a firearm arrived at Chinyuni Business Centre in
Chirumhanzu. His head was covered with a black woollen hat which
covered the forehead down to the eyebrows. A scarf covered his face
from the nose down to the mouth. All that could be seen were the
armed man's eyes.
He
force marched two men at gun point into a room at the premises
(hereafter referred to as the first room). He ordered the two men as
well as a lady who was in that room to lie on the floor. He demanded
money and was told that it was in the next room.
He
left the room closing the door behind him and stormed into the next
room (hereafter referred to as the second room) where he fired a shot
and demanded money.
As
one of the frightened occupants was putting the money in a plastic
bag as ordered, one of the men who had been force marched into and
was left lying on the floor in the first room bolted out of the room
and went outside. The escaped man proceeded to close the gate or
screen to the premises with a view to preventing the armed man from
escaping.
As
he was doing so the armed man also ran out from the second room
leaving the money behind.
The
armed man went towards the gate and shot the escapee who is the now
deceased, as he was closing the gate. The armed man left the scene.
It
is the State case that the armed man was in fact the appellant.
The
appellant denied having shot and killed the deceased maintaining that
he was not in Zimbabwe at the time of the commission of the offence.
He claimed that he had been in South Africa since 2001 until his
return to Zimbabwe on 18 April 2005, some 4 days after the commission
of the offence.
He
further claimed that the CZ pistol found in his possession at the
time of his arrest was not and could not have been the murder weapon
as he had acquired it in South Africa and had only brought it to
Zimbabwe on his return on 18 April 2005.
The
appellant also denied having made any indications to the Police at
the scene of the offence.
It
was contended on his behalf that the State had failed to prove the
allegation against the appellant beyond reasonable doubt.
It
was further contended that the trial court ought to have acquitted
him as the evidence adduced by the State failed to place the
appellant at the specific area at which, and within the specific time
that, the offence was committed.
The
respondent on the other hand contended that the appellant's
conviction was proper in the light of the evidence led.
It
was contended that the circumstantial evidence relied on by the trial
court passed the test set out in R
v Blom
1939 AD 188 thereby justifying the conviction despite the absence of
direct evidence of the appellant committing the offence.
None
of the State witnesses who witnessed the murder saw the assailant's
face or identified him, as his face was covered by a woollen hat and
red scarf that he was wearing at the time of the shooting.
John
Taziveyi Mabhundu, one of the State witnesses said that as the events
leading to the fatal shooting were unfolding he was not able to
identify the armed man. He was however present when the appellant was
making indications to the Police.
Although
due to the distance separating them he could not hear what the
appellant was saying as he made the indications, the indications made
by the appellant tallied with the witness' own observations of what
happened on 14 April 2005 and thus also tallied with his own
indications which he subsequently made regarding the events of the
fateful day.
He
observed that the appellant was sufficiently relaxed as he made his
indications such that he would chat with local people who had
gathered to witness the occurrence.
The
police reprimanded him for his conduct.
The
appellant confirmed this reprimand.
The
witness stated that the appellant made indications before State
witnesses, himself included, also made indications at the scene as to
the pertinent events leading to the deceased's fatal shooting.
After
the holding of a trial within a trial triggered by the appellant's
denial that he had made any indications, the trial court correctly
rejected his denial and ruled the recorded indications admissible in
evidence.
At
the time of his arrest the appellant was found in possession of a CZ
pistol.
In
both his confirmed warned and cautioned statement and his defence
outline, the appellant did not make any reference to the pistol.
In
his testimony before the trial court he did not however dispute that
he was in possession of a CZ pistol at the time of his arrest but he
denied having used it to commit the offence.
He
said that he had brought the pistol from South Africa where he had
been resident from 2001 until his return to Zimbabwe on 18 April
2005.
He
indicated that he intended to have the pistol registered in Zimbabwe.
In
his confirmed warned and cautioned statement, after being advised
that inquiries were being made in connection with offences allegedly
committed by him on 14 April 2005 at Chinyuni Business Centre in
Chirumanzi, the appellant said among other things that during the
said period he had visited “this place”. In his defence outline
the appellant stated that he only came back to Zimbabwe on 18 April
2005.
In
the appellant's Notice of Appeal it is stated:
“…non
(none?) of the evidence established that the appellant himself was in
the specific area of the offence when it occurred. The offence could
have been committed by any other person who had access to the
accused's CZ pistol.”
The
suggested possibility of the appellant's pistol having been
accessed and used by any other person to commit the offence tends to
indicate a belated acceptance by the appellant that he was not in
South Africa but was in Zimbabwe when the offence was committed for
it was him who brought the pistol into Zimbabwe.
That
also appears to signify a departure from the same stance in his
Defence Outline wherein he indicates that at the time of the
commission of the offence he was in South Africa.
The
statement in the warned and cautioned statement appears to place the
appellant in the general vicinity of the crime at the pertinent time.
His
reneging on this in his testimony when he said that what he meant by
“this place” was that he was in the Mashava area also tends to
show that the appellant abandoned his earlier claim that he was in
South Africa.
The
trial court rightly observed a determination on the part of the
appellant to mislead the court.
The
appellant's reneging on this said aspect of his warned and
cautioned statement appears to also confirm an acceptance of the
ballistic evidence that it was his weapon that fatally shot the
deceased as that is what the ballistic evidence established.
Ballistics
evidence adduced before trial court is pertinent.
The
ballistics report and viva
voce
evidence
put paid to the appellant's contention that the pistol recovered
from his possession could not be used without a magazine and that the
7.65mm fired cartridges recovered from the scene of the crime could
not have been fired from that pistol as it uses 2mm cartridges.
The
ballistics examination established that the pistol was functional and
that test cases fired from it matched the two fired cartridges that
were recovered from the scene.
The
firearms expert who testified further observed that the pistol had an
inscription on it stipulating the ammunition that can be used in it
as 7.65mm.
He
also testified that the recovered pistol, contrary to the appellant's
contention that it cannot function without a magazine, can in fact
function with or without a magazine and he demonstrated how.
The
ballistics evidence was not materially challenged.
By
the nature of the examination and tests that were conducted, the
resultant report and the oral evidence adduced, the ballistics
evidence was unassailable.
The
circumstantial evidence adduced before the trial court therefore
established the following facts:
(i)
It established that the CZ pistol that the appellant was in
possession of at the time of his arrest was the firearm from which
the fatal shot that struck and killed the deceased was fired.
(ii)
It established that it was the appellant who brought the CZ pistol
into Zimbabwe on his return from South Africa where he had obtained
it.
(iii)
The evidence also established that the appellant freely made
indications at the scene of the murder and such indications were
consistent with the events of the fateful day leading to the fatal
shooting of the deceased. Furthermore, that State witnesses who had
witnessed the events of 14 April 2005 and thereafter also witnessed
the making of indications by the appellant on 22 April 2005
recognised the appellant as the perpetrator of the offence of 14
April from his voice and also from his stature.
On
an application of the principles enunciated in R
v Blom
1939
AD 188 the court a
quo's
finding that the State proved the case against the appellant beyond
reasonable doubt is justified.
The
two cardinal rules of logic enunciated therein are the following:
(i)
Firstly, the inference sought to be drawn must be consistent with all
the proved facts. If it is not, the inference cannot be drawn.
(ii)
Secondly, the proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn. If
they do not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct.
In
casu
the inference drawn by the trial court is consistent with all the
proved facts.
Furthermore,
the proved facts are such that they exclude every reasonable
inference save the one made by the court a
quo.
The
fact of the appellant's pistol being the murder weapon coupled with
the fact that no one other than the appellant could have had access
to it as at 14 April 2005 further strengthen the cogency of the
exclusion of every reasonable inference save the one made by the
trial court.
The
formulation in Munyanga
v The State
HH79/13
is that the court must consider all the 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.
Even
on this formulation, the verdict by the court a
quo
cannot
be faulted on the proved facts.
On
the evidence placed before it the trial court therefore came to the
correct conclusion.
The
conviction is proper.
Mr
Van
Heerden
for
the appellant had no meaningful submissions to make against sentence.
This
was a murder committed during the course of a robbery.
The
court a
quo
correctly
took this into account in determining whether or not there were
extenuating circumstances. In S
v
Woods & Ors
1993
(2) ZLR 258 (S) at 284A-B the following was stated:
“In
deciding whether or not extenuating circumstances exist which allow
of the imposition of a sentence other than death, the trial court
exercises what is essentially a moral judgment. On appeal this Court
cannot substitute its own view. It may only interfere if persuaded
that the conclusion of the trial court could not reasonably have been
reached; or where that court had regard to wrong factors, or had
mistakenly excluded factors proper to be taken into account, or had,
in some other way, erred in principle.”
The
appellant who was in the process of committing an armed robbery
abandoned the robbery and went and shot the deceased who was trying
to lock the gate to the premises in order to prevent him from
escaping.
He
shot the deceased in the abdomen at close range.
The
appellant stated that he was conversant with firearms having been an
active member of the Zimbabwe National Army from 1997 to 2001.
In
S
v Sibanda
1992
(2) ZLR 438 (S) at 443F-H it was stated:
“Warnings
have frequently been given that, in the absence of weighty
extenuating circumstances, a murder committed in the course of a
robbery will attract the death penalty. This is because, as observed
in S
v Ndlovu S-34-85
(unreported):
'…
it
is the duty of the courts to protect members of the public against
this type of offence which has become disturbingly prevalent. People
must feel that it is possible for them to enjoy the sanctity of their
homes, to attend at their business premises, or to go abroad, without
being subjected to unlawful interference and attack.'”
See
also Cloudius
Mutawo v The State
SC37/2014
where at p6 of the cyclostyled judgment it was stated that there
would have to be very strong mitigatory factors for a person who
commits murder in the course of a robbery to escape the death
penalty.
In
casu
no
mitigatory factors avail the appellant.
The
trial court's finding that there were no extenuating circumstances
in this case is faultless on the facts proved. No justification for
interference by this Court with the trial court's findings and with
its exercise of its discretion has been established. The trial court
did not err.
In
the circumstances the appeal against conviction and sentence is
dismissed.
ZIYAMBI
JA: I
agree
HLATSHWAYO
JA:
I agree
Lazarus
& Sarif,
appellant's
legal practitioners
The
National Prosecuting Authority,
respondent's legal practitioners
