The State v Christopher Chamisa and Garikai Siziba

### Preamble
1
HB 170.19
HC (CRB) 84/19
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THE STATE

Versus

CHRISTOPHER CHAMISA

And

GARIKAI SIZIBA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr O Dewa and Mr M Ndlovu

BULAWAYO 15 AND 16 OCTOBER 2019

Criminal Trial

N Ngwenya for the state

M Nyika and T Vhiki for the 1st accused

N Moyo for the 2nd accused

MAKONESE J:	On the 27th May 2017 and in the early evening hours the two accused persons acting in common purpose proceeded to Jalukange business centre, Tuli, in Beitbridge.  The first accused was carrying an AK 56 rifle concealed in a rolled reed mat tied on both ends with a red and white cloth. Accused persons entered a shop at the business centre. First accused fired two shots at a shopkeeper who was serving a customer.   Second accused rushed behind the counter and collected cash from the petrified shopkeeper.  Accused persons got out of the general dealer shop with their loot and indiscriminately fired shots at the verandah where some patrons were seated.  The deceased was shot in the back and stomach.  Accused persons proceeded to a bottle store, randomly firing shots at the walls,  counter and the floor.  The bar lady,  PerseculiarNsingo, was hit by fragments in the back as she ran out of the bar.  The accused persons collected a cash box containing cash before fleeing the scene.  The deceased Dion Muleya was conveyed to Shashe clinic.  He was badly injured and sustained injuries from the gunshot wounds.  On 30th May 2017 he died at United Bulawayo Hospitals.

The accused persons are facing one count of murder.  It being alleged that on the 27th May 2017 at JalukangeBusiness Centre, Beitbridge, the accused persons shot and killed Dion Muleya intending to kill him or realizing that there was a real risk or possibility that their conduct may cause the death of their victim.  Both accused persons pleaded not guilty and tendered pleas of guilty with respect to the lessor offence of culpable homicide.  The state rejected the limited plea.  The matter proceeded to trial.

The allegations against the accused persons as contained in the outline of the state case are largely common cause.  It is not in dispute that the accused persons hatched a plan to rob the general dealer shop and bottle store.  The AK 56 rifle was loaded with ammunition.  The accused persons intended to use the firearm to subdue their victims and rob them of cash.  Accused 1 fired several shots in the direction of a number of persons at the shopping centre.  The rifle was engaged in automatic mode and the first accused fired the weapon indiscriminately.  At the end of the shooting spree, the deceased lay on the verandah with gunshot wounds in the back.  His stomach had been ripped open and the intestines were exposed.  PerseculiarNsingo sustained injuries in the back and was ferried to Shashe Clinic for treatment.  The deceased was not so lucky.  He succumbed to the injuries and died on 30th May 2017.

In his defence outline first accused stated as follows:-

“…

1.	That he never intended to kill the deceased at all.

2.	That on the 27th May 2017, he left home early in the morning in the company of 2nd accused person and they went for hunting.  They spent the whole day hunting but did not catch anything.

3.	That around 17:30 hrs on the same day, they subsequently got at JalukangeBusiness Centre Tuli, Beitbridge where they bought a 2 litrecoca-cola soft drink and a packet of potato chips as they were hungry.

4.	That whilst resting at the verandah of the shop, the two accused persons hatched a plan to rob the shop after realising that the shop seemed busy on that particular day.

5.	That they proceeded into the shop and demanded money from the shop attendants.  After the shop attendants refused, they fired two shots towards the counter simply to scare them.

6.	That he totally lost control of the firearm after pressing the automatic button because he had no knowledge of how to operate it and he subsequently shot the deceased in the stomach.

7.	That he did not intend to shoot the deceased person who was seated at the veranda since he had not interfered with their mission.

Wherefore the 1st accused person prays for his acquittal on a charge of murder and pleads guilty to the charge of culpable homicide.”

It is apparent from first accused’sdefence outline that he denies causing the death of the deceased.  His line of defence is that he did not intentionally cause the death of the deceased.

Accused two’s defence outline is in the following terms:

“…

2.	Accused will state that sometime in 2017, he was taken by accused one after he had been chased away from home by his maternal grandfather.

3.	That after staying for a week with accused one who told him that they had to find a way of making money to sustain themselves since they were both unemployed.

4.	That accused one further went on to inform accused two that he, accused one had sometime back picked a firearm in the mountains and accused one proposed that they use the firearm for hunting as a way of raising money for their sustenance.

5.	That on 27th May 2017, accused persons armed themselves with the firearm and went hunting as proposed by accused one, they however failed to catch any prey until they arrived at JalukangeBusiness Centre where they bought soft drinks and rested.

6.	That accused one then called accused two aside and discussed with him how they could get money from the shops instead.  The accused persons then hatched a plan to threaten the shop keepers with the firearm and rob them of money in the shops.

7.	That accused persons then went first into the general dealer shop and there they found two people whom they threatened to release money.  Accused one then fired one shot from the firearm to scare the two who immediately released the money to accusedtwo.

8.	That the accused will state that they went into the adjoining bar where they found no people and they took a cash box with cash inside.

9.	That  upon leaving the bar, accused one fired another shot.  Accused two will state that after that shot, he heard a series of gunshots from the firearm.  He will however state that he did not see any person outside the shop as people had already fled.

10.	That accused two will further state that he did not notice the deceased at or around the premises, neither did he realize at the time that any person had been injured during the course of the robbery.

11.	That accused acknowledges that through their actions, deceased met his demise, however he will state that neither himself nor accused one had any intention of killing any person.

12.	That accused two will state that the death of the deceased was due to the accused persons’ negligence and was not premeditated or an expected result of their expedition.

13.	That accused two will therefore plead with the court to find him not guilty on the charge of murder but of the lesser offence of culpable homicide.”

The detailed defence outlines of both accused persons reveal that the circumstances surrounding the commission of the robbery and murder are not entirely in dispute.  Both accused persons accept responsibility for the death of the deceased. What is in dispute is what accused1”s intention was when he discharged the firearm.

The state tendered into the record a post mortem report compiled by DrSanganayiPesanai following an examination of the remains of the deceased.  The report reflects that the deceased was a male adult aged 48 years.  The cause of death is listed as:-

septicemia

peritonitis

gunshot wound (abdomen)

assault

On marks of violence the report shows that the deceased had a gunshot wound (0.5cm) 2cm from the midline, 6cm from the chest.  Entrance wound from back to front, left to right bottom to top.  A further wound was observed on the right abdomen (5x3cm) located 5cm from the chest, 2cm from last rib, 8cm from the midline.  The murder weapon, the AK 56 rifle was tendered as an exhibit.  The weapon had been painted with black paint.  An empty rifle magazine was also tendered as an exhibit.  A reed mat measuring 1.8m x 1.2 metres used to conceal the rifle was also tendered as an exhibit.  A black bag inscribed “NATURAL” was the last exhibit produced by the state.

The state led viva voce evidence from one witness, PERSECULIAR NSINGO.  At the material time she resided at Jalukange bottle store, Tuli, Beitbridge.  She was employed as a cashier.  On this fateful day,and at around 1600 hours she was on duty when the accused persons arrived at the bar and sat on the verandah.  First accused was carrying a reed mat tied with red and white pieces of cloth on both ends.  First accused was wearing a pink pair of slippers.  Second accused was holding a small bag inscribed “NATURAL”.  First accused entered the grocery shop and bought a coke and packet of chips.  The two accused persons sat in the verandah and consumed their food.  One of the accused persons indicated that they were from Masera area number 5 in Tuli.  The witness got inside the bar and continued with her normal duties.  After a short while the witness noticed that the two accused persons had left the shops.  The accused persons later re-emerged at the shopping centre and sat on the verandah.  Whilst serving patrons, the witness heard gunshots outside the shop.  The patrons fled the shops as the shooting continued.  First accused suddenly stormed into the bar armed with a black firearm.  Without uttering a word, the first accused aimed the rifle at her.  The witness turned to run towards the back of the shop in a bid to escape.  As the witness was unlocking the door, first accused fired several shots towards her. She was hit by fragments in the back as the bullets ricocheted against the walls.  The witness fled into a nearby bush.  Whilst in hiding the witness heard several gun shots.  The witness later returned to the shops.  She found a crowd gathered on the verandah of the general dealer shop.  The witness observed the deceased lying on the ground with his intestines protruding from the abdomen.  He was bleeding profusely.  One Freedom Tlou ferried the witness together with the deceased to Shashe clinic.  The witness was treated and discharged after two days.  Before leaving the scene, the witness discovered that a cash box containing R4 090 and US$70 cash had been stolen during the robbery.  The witness later learnt that the deceased had died at United Bulawayo Hospitals on 30th May 2017.

The witness gave her evidence comfortably and was not shaken under cross examination.  Her evidence is credible, consistent and reliable.  Her testimony is corroborated by accused persons in material respects.

The state sought and obtained formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The evidence of the following witnesses as it appears in the outline of the state case was accordingly entered into the record with the consent of defence counsel, namely:-

(a)	Freedom Tlou

(b)	Tobias Sambaza

(c)	Clarence Tendanguwo

(d)	Makondo Lawrence

(e)	Dr S Pesanai

The state closed its case.

The first accused, CHRISTOPHER CHAMISA, elected to give evidence under oath.  Accused adhered to his defence outline.  He narrated that on the day in question he decided to go hunting with accused two.  Earlier,and sometime in 2017 he had picked an AK 56 rifle in a small cave in Maranda, Mwenezi.  He had decided to keep the firearm on the advice of a certain old man by the name Dube.  Accused testified that he had gone on earlier hunts with this old man.  He was not familiar with the firearm and had been taught the basics on how to operate the rifle. On the day in question, accused 1 and his associate left their village early in the morning.  They walked the whole day but did not kill any game.  Around 5pm they arrived at JalukangeBusiness Centre.  They were tired and hungry.  They had their weapon concealed in a reed mat.  They purchased some drinks and chips and sat atthe  verandah.They conceived of a plan to rob the shop owner using the firearm.  The 1st accused indicated that his intention was simply to fire the weapon away from the patrons and frighten the   shopkeeper.  They would then collect the cash.  They entered the first shop and found two persons inside.  Accused1 opened fire aiming at the counter, walls and the floor.  Accused 2 collected a plastic bag containing R7 578 and US$114 in cash.  Accused persons exited the shop firing several shots outside the shop indiscriminately.  Accused avers that he totally lost control of the gun and because of fear he kept firing.  His version is that the weapon had engaged into automatic mode.  Accused confirms that he proceeded to the bottle store, still firing the weapon.  As he entered the shop there was no one inside.  He collected a cash box containing cash which he handed to accused two.  They fled the scene using a back entrance.

First accused states that he never saw the deceased.  He never aimed at him with the rifle.  He was advised by the police upon his arrest that he had injured someone.  Accused1’s defence is that he negligently caused the death of the deceased.  He denies that he foresaw the death of the deceased.

First accused’s evidence is contradictory and inconsistent.  His account of how he acquired the rifle is simply not believable.  The coincidence of finding a firearm with ammunition in a cave in Maranda sounds hollow.  By his own admission he had no knowledge of using the weapon.  He however went out to hunt wild animals with a weapon he had never used.  He testified that he never shot or killed an animal with this weapon.  The accused’s account does not sound true and is false.  The first accused and his accomplice simply planned and executed the plan to rob the shops.  He was prepared and ready to use the weapon.  By firing indiscriminately inside and outside the shop he should have foreseen that there was a possibility that someone might be injured.  First accused admits that he fired the weapon several times and suggested that he lost control of the weapon.

We reject the accused’s explanation of how he got possession of the rifle.  We do not accept his explanation that he decided to rob the shops after an abortive hunting expedition.  Accused and his associate targeted the shopping centre and were prepared to use force to achieve their objective.

Accused two, GARIKAI SIZIBA gave evidence under oath.  He adhered to his defence outline.  His version is that he went for a hunt with accused 1.  They could not find any game.  After walking for a distance over 100 km on foot they arrived at JalukangeBusiness Centre.  They had some soft drinks with chips.  They hatched a plan to rob the shops.  The idea came from accused 1.  Accused 2’s role was to collect the cash.  Accused 1’s role was to fire the weapon and scare away the patrons and shopkeepers.  Accused 2 conceded that he was an accomplice in this criminal enterprise.  He accepts responsibility for the death of the deceased.  He however, avers that accused 1 was negligent in his conduct and that they should be found guilty of culpable homicide.  We found the versions of both accused persons to be false.  The accused persons approached JalukangeBusiness Centre with the gun concealed in a reed mat.  They decided to rob the shops.  The firearm would subdue their victims and they would rob them of cash.  Any person who embarks on a mission to rob using a firearm reasonably foresees that in firing the weapon in the open or in an enclosed, populated space, some person or persons might be injured or killed.

MsN Ngwenya appearing for the state argued that the state proved its case beyond reasonable doubt and that accused persons ought to be convicted of murder with actual intent.  In terms of section 47 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23), it is provided thus:-

“(1)	Any person who causes the death of another person-

(a)	intending tokill the other person; or

(b)	realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the real risk or possibility; shall be guilty of murder.”

It is trite that whenever the prosecution is called upon to prove theintentional commission of the crime of murder it can prove actual or legal intention.  Legal intention is also referred to as constructive intent or doluseventualis.  The test for both actual and legal intention is a subjective one.  The subjective test involves a consideration of the personal state of mind of the accused at the time of the alleged commission of the crime.  The issue for determination by the court is therefore, what was accused’s state of mind at the time, not what would have been the state of mind of a reasonable person placed in that situation.

See: A Guide to the Criminal Law of Zimbabwe by G Feltoe 2nd Edition at page 10.

MsMoyo appearing for the second accused argued that the facts of the matter and the circumstances surrounding the commission of the offence could only give rise to a verdict of guilty with respect to culpable homicide.  We do not agree with that assertion.  This approach negates the settled principle of the law that the court applies an objective test in cases of negligence.  The court does not try to discover what was going on in the mind of the accused.  Instead, in cases of negligence, and where the objective test is applied, the court compares the conduct of the accused with that of a reasonable man.  In such cases therefore, the court must decide how a reasonable person would have acted if placed in the same position as the accused.  It then determines whether the accused acted as a reasonable person would have done.  Put simply, negligence involves the failure to act as a reasonable person would have acted in similar circumstances.

The case of State v Mugwanda SC-19-02 is instructive in dealing with the issue of actual and legal intention.  The learned CHIDYAUSIKU (CJ) stated at page 9 of the cyclostyled judgment as follows:-

“On the basis of the above authorities it follows that for a trial court to return a verdict of murder with actual intent it must be proved beyond reasonable doubt that:-

(a)	either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b)	whilepursuing another objective he foresees the death of his victim as asubstantially certain result of that activity and proceeds regardless.

On the other hand, a verdict of murder with constructive intent requires the foreseeable to be possible (as opposed to being substantially certain, making this a question of degree more than anything else).   In the case of culpable homicide the test is he ought to, as a reasonable man, have foreseen the death of the deceased.”

See also; State v Sigwhahla 1967(4) SA 556

In the present case, the established facts are that the accused persons’savowed intention was to rob the shops. It follows that their primary objective was not to cause the death of the deceased.  In pursuance of their conduct, accused 1 fired the rifle randomly and indiscriminately.  He did not aim at the deceased.  He did not intend to bring about the death of the victim.  He however, foresaw that death was a possibility.  He continued firing the weapon towards or in the direction of the patrons.  It is only fortuitous that only one person died as a result of the several gunshots fired inside the shop, the bar and outside the verandah.  The accused persons persisted with their conduct regardless of the consequences.  There was no evidence placed before the court to suggest that death was a substantially certain result.  In the circumstances, and for the afore-going reasons, the court finds both accused persons guilty of murder with constructive intent.

Reasons for Sentence

This court has a duty to protect the sanctity of human life.  The wanton use of violence against members of the public should not be countenanced by this court.  The accused persons acting in common purpose committed the crime of murder during the course of a robbery.  The robbery was clearly planned and well executed.  During the course of the robbery accused 1 fired several shots from an AK 56 rifle.  The random nature of the firing led to the loss of life.  The moral blameworthiness of both accused persons is high.  They terrorised the shopkeepers and patrons by discharging a firearm recklessly and without regard to the fate of the deceased and other patrons.

Accused persons acted with great resolve and determination.  They set out to rob the shops.  They were ready and prepared to use violence to subdue their victims.

In assessing an appropriate sentence the court takes into account all the mitigating factors placed before the court by accuseds’defence counsel.  Both accused tendered limited pleas.  They are first offenders and they have shown a certain measure of remorse and contrition.   Both accused persons are currently serving prison terms for the offence of robbery.

It is the view of this court that this murder was clearly committed in aggravating circumstances.  Despite the weighty mitigating circumstances, the accused persons must be sentenced in a manner that reflects the seriousness of the offence.  Lengthy prison sentences are called for.

In the result, both accused persons are sentenced as follows.

“Each accused is sentenced to 25 years imprisonment”.

The National Prosecuting Authority, state’s legal practitioners

Liberty Mcijo& Associates 1st accused's legal practitioners

Advocate S K M & Partners, 2nd accused’s legal practitioners