UCHENA
JA:
This
is an appeal against the judgment of the High Court Harare handed
down on 21 November 2018 convicting
the appellant of murder with actual intent as defined in section
47(1)(a)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
(the “Act”) and sentencing him to death.
The
automatic appeal is against the sentence of death.
After
hearing submissions from counsel for both parties we with their
consent dismissed the appellant's appeal and indicated that reasons
would follow in due course. These are they.
In
spite of the order having been granted with the consent of the
parties reasons for the granting of that order are necessitated by
the appellant having been sentenced to death which in terms of
section 48(2)(e) of the Constitution entitles him to an application
for pardon or commutation of the penalty to the President, which
requires the judgment of this Court.
In
terms of subsection 2(b) a final judgment of this Court is
required for the execution of the death penalty. Section 48(2)(b) and
(e) provides for such circumstances as follows:
“(2)
A law may permit the death penalty to be imposed only on a person
convicted of murder committed in aggravating circumstances, and —
(a)---
(b)
the
penalty may be carried out only in accordance with a final judgment
of a competent court;
(c)-----
(i)-----
(ii)
–--
(d)----
(e)
the
person sentenced must have a right to seek pardon or commutation of
the
penalty
from the President.”
(emphasis
added)
FACTUAL
BACKGROUND
The
appellant was charged with murder in terms of section 47(1)(a) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23]
in that he caused the death of Patrick Philemon who was his
uncle. He was convicted on the common cause evidence that he had
caused the deceased's death. His confirmed warned and cautioned
statement which sets out in detail how the offence was committed
reads as follows:
“I
admit the charge of murdering Patrick Philimon that is being leveled
against me. On the morning of 10 December 2015, I was sitting at home
facing the North and I saw Patrick Philimon who was sitting on a rock
on the foot of a hillock. I stood up and went towards where he was.
After walking for a short distance, I picked a piece of a metal that
is used to stretch the fence in the field. I intended to use it to
attack Patrick Philimon because we had a disagreement over his having
chased me away from home. I continued with my journey towards where
he was. When I got near him, I went round the hillock so that he
would not see me and also that he would not suspect that there was
someone drawing close to where he was. While I was behind the
hillock, I became afraid of what I wanted to do. I then went to a
Muzhanje tree that was nearby while thinking of what I should do. I
gathered courage (encouraged myself) and went where Patrick Philimon
was. I got to where he was while creeping stealthily behind him and
struck him with the piece of metal three times on the head near the
ear. Patrick Philimon stood up crying and said 'nephew forgive me'.
I did not want to forgive him so I went on striking him with the
piece of metal in the head until he fell down. As he was down, I
struck him again about five times until I was satisfied that he was
dead. I left this place and went back the same way I had come. I hid
the piece of metal in the grass and went to the dam to wash my body
and clothes, which were bloodstained. I put the clothes back on when
they had dried and the bloodstains were no longer properly visible
and went back home.”
At
the appellant's trial, the statement was produced by the state with
the consent of the appellant's counsel. The appellant admitted that
he had written it in Shona on a piece of paper after which it was
recorded in English and subsequently confirmed by a Magistrate.
The
appellant told the court a
quo
of how he led the Police to the scene of the murder and indicated
where he had hidden the metal he used to murder the deceased which
was recovered. The appellant admitted that he had had an adulterous
affair with the deceased's wife and had as a result been ordered by
the Headman's court to leave the deceased's homestead where he
had been staying for several years after his return from Harare.
The
court a
quo
convicted the appellant of murder with actual intent.
It,
after finding that the appellant had committed the murder in
aggravating circumstances and that no mitigating factors which could
justify the avoidance of the death sentence, had been established
sentenced him to death.
In
terms of section 44 of the High Court Act [Chapter
7:06]
the death sentence entitled the appellant to an automatic appeal. He,
however, appealed against sentence only on the following grounds:
“1.In
passing the death sentence, the court a
quo
misdirected itself in finding that there were aggravating factors and
no extenuating circumstances.
2.
The discrimination imposed by the Constitution on the imposition of
the death sentence is unjustifiable in a democratic society like
Zimbabwe.”
In
his heads of argument the appellant's counsel stated that after
reading the judgment of this Court in Moyo
v The State
SC 29/21 he was abandoning the second ground of appeal.
The
appeal therefore proceeded on the first ground of appeal which
attacked the court a
quo's
sentence on the basis that it had not taken into consideration the
appellant's extenuating circumstances.
This
Court, as is required by law and as was explained in the cases of
Moyo
v The State
SC 29/21, Mutero
v The State
SC53/18, S
v Mubaiwa
1992 (2) ZLR 362,365D, Mupande
v The State
SC
37/14 and Ncube
and Anor v The State
SC 58/14, must consider and determine the correctness of the
conviction even if the appeal is against sentence only.
After
reading the record of proceedings in the court a
quo,
and
considering the concession properly made by the appellant's
counsel, regarding the propriety of the conviction, we were satisfied
that the appellant was correctly convicted of murder with actual
intent.
SUBMISSIONS
BEFORE THIS COURT
Mr
Chagudumba
for the appellant sought to rely on the fact that the court a
quo
did not make findings on extenuating circumstances in its reasons for
imposing the death sentence. After an exchange with the court he
conceded that the law had since the coming into effect of the 2016
General Laws Amendment Act No.2 of 2016, changed and no longer
requires a court to make findings on the existence of extenuating
circumstances.
Mr
Mapfuwa
for the state submitted that since the appellant's counsel had made
concessions on the appellant's grounds of appeal the appeal should
be dismissed with the consent of both parties.
APPLICATION
OF THE LAW TO THE FACTS
We
were satisfied that the appellant had correctly abandoned his second
ground of appeal because the alleged discrimination is provided for
in section 48(2)(c) and (d) of the Constitution which provides as
follows:
“(2)
A law may permit the death penalty to be imposed only on a person
convicted of murder committed in aggravating circumstances, and —
(a)---
(b)----
(c)
the penalty must not be imposed on a person —
(i)
who was less than twenty-one years old when the offence was
committed; or
(ii)
who is more than seventy years old;
(d)
the penalty must not be imposed or carried out on a woman; and
(e)----.”
(emphasis added)
It
is trite that the court's duty is to interpret the law and the
Legislature's is to enact laws. The complaint about the alleged
discrimination should therefore be directed to the Legislature.
As
regards the first ground of appeal the appellant's counsel
correctly conceded that the law has changed and extenuating
circumstances are no longer a determining factor on whether or not
the death sentence should be imposed.
Section
48(2) provides that a death sentence can 'be imposed only on a
person convicted of murder committed in aggravating circumstances'.
It does not mention extenuating circumstances.
Prior
to its amendment by section 43 of Act 2 of 2016 section 337 of the
Criminal Procedure and Evidence Act [Chapter
9:07]
provided for extenuating circumstances. It read as follows:
“337
Sentence of death for murder
Subject
to section three
hundred and thirty-eight,
the High Court —
(a)
shall
pass sentence of death upon an offender convicted by it of murder:
Provided that, if the High Court is of the opinion that there are
extenuating circumstances or
if the offender is a woman convicted of the murder of her newly-born
child, the court may impose -
(a)
a sentence of imprisonment for life; or
(b)
any sentence other than the death sentence or imprisonment for life,
if the court considers such a sentence appropriate in all the
circumstances of the case.”
Section
337 of the Criminal Procedure and Evidence Act as amended by section
43 of the 2016 General Laws Amendment Act No.2 of 2016 no longer
refers to extenuating circumstances. It now provides as follows:
“(1)
Subject to section 338, the High Court may pass sentence of death
upon an offender convicted by it of murder if
it finds that the murder was committed in aggravating circumstances.
(2)
In cases where a person is convicted of murder without
the presence of aggravating circumstances,
or the person is one referred to in section 338(a),
(b)
or (c),
the court may impose a sentence of imprisonment for life, or any
sentence other than the death sentence or imprisonment for life
provided for by law if the court considers such a sentence
appropriate in all the circumstances of the case.” (emphasis
added)
Section
338 to which section 337 is subjected only provides for the persons
on whom the death penalty shall not be imposed. It does not provide
for extenuating circumstances. It provides as follows:
“338
The
High Court shall not pass sentence of death upon an offender who —
(a)
was less than twenty-one years old when the offence was committed; or
(b)
is more than seventy years old; or
(c)
Is a woman.”
We
were therefore satisfied that counsel for the appellant correctly
conceded that extenuating circumstances are no longer a mandatory
consideration in determining whether or not a death sentence should
be imposed on a person convicted of murder.
Section
47(2) to (5) of the Criminal Law (Codification and Reform Act)
[Chapter 9:23]
as amended by Act 3 of 2016, provides for what constitutes
aggravating circumstances as follows:
“(2)
In determining an appropriate sentence to be imposed upon a person
convicted of murder, and without limitation on any other factors or
circumstances which a court may take into account, a court shall
regard it as an aggravating circumstance if —
(a)
the murder was committed by the accused in the course of, or in
connection with, or as the result of, the commission of any one or
more of the following crimes, or of any act constituting an essential
element of any such crime (whether or not the accused was also
charged with or convicted of such crime) —
(i)
an act of insurgency, banditry, sabotage or terrorism; or
(ii)
the rape or other sexual assault of the victim; or
(iii)
kidnapping or illegal detention, robbery, hijacking, piracy or
escaping from lawful custody; or
(iv)
unlawful entry into a dwelling house, or malicious damage to property
if the property in question was a dwelling house and the damage was
effected by the use of fire or explosives; or
(b)
the murder was one of two or more murders committed by the accused
during the same episode, or was one of a series of two or more
murders committed by the accused over any period of time; or
(c)
the
murder was preceded or accompanied by physical torture or mutilation
inflicted by the accused on the victim; or
(d)
the victim was murdered in a public place or in an aircraft, public
passenger transport vehicle or vessel, railway car or other public
conveyance by the use of means (such as fire, explosives or the
indiscriminate firing of a weapon) that caused or involved a
substantial risk of serious injury to bystanders.
(3)
A court may also, in the absence of other circumstances of a
mitigating nature, or together with other circumstances of an
aggravating nature, regard as an aggravating circumstance the fact
that —
(a)
the
murder was premeditated;
or
(b)
the murder victim was a police officer or prison officer, a minor, or
was pregnant, or was of or over the age of seventy years, or was
physically disabled.
(4)
A person convicted of murder shall be liable —
(a)
subject to sections 337 and 338 of the Criminal Procedure and
Evidence Act [Chapter
9:07],
to
death, imprisonment for life or imprisonment for any definite period
of not less than twenty years, if the crime was committed in
aggravating circumstances as provided in subsection (2) or (3); or
(b)
in any other case to imprisonment for any definite period.
(5)
For
the avoidance of doubt, it is declared that the circumstances
enumerated in subsections (2) and (3) as being aggravating are not
exhaustive, and that a court may find other circumstances in which a
murder is committed to be aggravating for the purposes of subsection
(4)(a).”
(emphasis
added)
The
law on whether or not to impose the death sentence now depends on
whether or not the murder was committed in aggravating circumstances.
On
the appropriateness of the sentence imposed by the court a
quo
we considered that the appellant had deliberately set out to murder
the deceased. The murder was therefore premeditated as his actions
were prompted by the history of the relationship between him and the
deceased.
When
he became hesitant, he pondered about it and resolved to carry out
his intent.
On
getting to where the deceased was, he stealthily approached and
attacked the deceased from behind. He delivered several blows on the
deceased's head. When the deceased asked for forgiveness, he
resolved not to forgive him and carried on with his murderous attack
until he was satisfied that the deceased had died.
The
post mortem report gave details of the multiple injuries the
appellant caused.
It
was on this evidence that we were satisfied that the murder was as
properly conceded by counsel for the appellant, committed in
aggravating circumstances. The injuries as shown by the pictures of
the deceased's body and the post-mortem report prove that the
murder
was, preceded or accompanied by physical torture or mutilation
inflicted by the appellant on the deceased.
Counsel for the appellant conceded that the nature of the injuries
prove that the deceased was exposed to torture and mutilation before
he died.
It
was for these reasons that we, with the appellant's counsel and
respondent's counsel's consent, dismissed the appellant's
appeal.
GUVAVA
JA: I
agree
KUDYA
JA: I
agree
Artherstone
& Cook,
appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
