The State v Brian Chipadza

### Preamble
1
HCC19-22
CRB13/22
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THE STATE

versus

BRIAN CHIPADZA

HIGH COURT OF ZIMBABWE

MUZOFA J,

CHINHOY, 23 February,2,4,14,25 March,19,26 May& 6 September 2022

Assessors: 	1. Mr Chivanda

2. Mrs Mawoneka

Criminal Trial

T.H. Maromo, for the State

S.T. Farai, for the accused

MUZOFA J: The accused was arrested and charged together with three accomplices on a charge of murder in contravention of s47 (1) of the Criminal Law Codification and Reform Act. Two of the accused persons were granted bail and they have since absconded.

The trial commenced with two accused persons after a separation of trials. In the course of the trial one of the accused persons, Paul Mungwena died at Chinhoyi Prison. Thus at the end of it all one accused person remains before the court.

The accused and his accomplices were charged with the murder of Liston Chikomba, the deceased on 10 November 2020.The State alleged that , on the fateful day the deceased was at Gwanzura Compound, Battlefields Kadoma watching some snooker game. The accused in the company of his accomplices arrived at the compound in a Toyota Allion driven by Nathan Makiwa. They disembarked menacingly and approached the deceased. They blamed him for causing the arrest of their relative. One of them assaulted the deceased with a beer bottle. The deceased tried to escape, he could not outpace them. They caught up with him near his homestead. They continued to assault him indiscriminately using beer bottles, a knife, booted feet and clenched fists. This happened in the full glare of the deceased’s wife and mother who watched and pleaded with the accused to desist from assaulting the deceased to no avail. The deceased succumbed to the injuries on admission at the hospital.

The State case.

The post mortem report was produced by consent. Dr Mayedo examined the remains of the deceased and concluded that death was due to acute anaema, left gluteus superiod and deep femoral artery lacerate and severe legs trauma due to stab wounds.

Despite spirited opposition to the production of the confirmed warned and cautioned statement, the statement was accepted into the record of proceedings in terms of s256 (2) subject to the accused proving on a balance of probabilities that he did not make the statement feely and voluntarily. Obviously the objection to the production of the confirmed statement was due to a failure by the accused’s legal practitioner to appreciate the law on the issue. See Dube v S SC 62/14.

The evidence of three witness was accepted in terms of s314 of the Criminal Procedure and Evidence Act.

Four witness gave oral evidence. Their evidence was that the deceased was pursued by a gang of five to six people. These people had disembarked from a Toyota Allion. None of the witnesses noted down the registration number of the motor vehicle. However it was said to belong to Nathan one of the accomplices who absconded. When they caught up with him they assaulted him indiscriminately using knives, bottles, open hands and clenched fists. None of the witnesses identified the assailants.

In respect of the warned and cautioned statement, the investigating officer and the officer who witnessed its recording gave evidence. They indicated that the statement was properly recorded and no undue influence was exerted on the accused. The Magistrate who confirmed the warned and cautioned statement also gave evidence and indicated that the confirmation proceedings were properly conducted.

When the State closed its case, an application for discharge was made in terms of s198 of the Criminal Procedure and Evidence Act. We dismissed it. We considered that despite the lack of direct evidence placing the accused at the scene of crime from the state witnesses the state had established a case upon which a court might convict. The confirmed warned and cautioned statement  coupled with the available evidence aliunde  showing that the offence was committed is adequate. It is competent for a court to convict an accused on a confession provided the offence is proved to have been committed in terms of s273 of the Criminal Procedure and Evidence Act.

It is undesirable for a court to discharge an accused person at the close of the state case where a confirmed warned and cautioned statement has been accepted into evidence. At this stage it is evidence that has not been disproved. The accused can only lead evidence to show that it was not freely and voluntarily made in his defence case. As such the matter must proceed into the defence case.

The defence case

Two witnesses gave evidence in support of the defence case. The accused adopted his defence outline and in his evidence he explained that on the day the offence was committed he was not at Gwanzura Compound. He travelled to Kadoma and did not disembark on the way. His arrest was fortuitous in that he boarded a motor vehicle driven by one of the persons alleged to have committed the offence. He did not know his co-accused persons. He was an innocent passenger in the motor vehicle.

As regards the warned and cautioned statement he said he did not make it. The police gave him the statement to sign after being assaulted and threats of being shot.

He also challenged the confirmation proceedings. He said he advised the court that he was assaulted and threatened. The court noted the complaints and he was advised that they would be investigated. He was not advised of the outcome.

The second defence witness’s evidence was an administration and accounting officer at the accused’s legal practitioner of record. His evidence was that he delivered a letter requesting for a record from Kadoma Magistrates Court CRBK1739-42/20.The record was not availed to them. The point made was that they were denied access to the record to conceal what transpired before the Magistrate on initial remand.

We found the evidence irrelevant. We do not find justification for the inference made. If they were advised that the record had been transmitted to Chinhoyi Magistrates Court, they should have simply followed up with the Chinhoyi Registry. For practical purposes the legal practitioner could have simply referred the court to the record and addressed the court on the relevant issues. This was not done.

Analysis of the evidence and the law.

It is common cause that the deceased was assaulted by a group of people in the manner described by the state witnesses. The only issue for determination by the court is the identity of the assailants.

The state case is heavily dependent on the warned and cautioned statement. For that reason we address the admissibility of the statement first.

The accused bears the onus to prove on a balance of probabilities that he did not make the statement or that he did not make it freely and voluntarily. It is only then that the state, if so inclined can adduce evidence in rebuttal.

It is expected that the accused traverses all the relevant facts in respect of the recording of the statement. The accused was not very clear, it would appear in one breath he said he was assaulted and he eventually admitted to the charges. In another he said he was given the statement to sign. He signed it after threats of being shot and assaults. We note that he did not give the details of how he was assaulted. He did not advise the Court if he sustained any injuries or not.

We were urged by Mr. Farai to disregard the evidence of Detective Sergeant Cheza and Detective Sergeant Matemaunga as they both gave evidence that they recorded the warned and cautioned statement.

The submission is misplaced. The warned and cautioned statement speaks for itself that it was recorded by Detective Sergeant Cheza and witnessed to by Detective Sergeant Matemaunga. Mr Farai failed to appreciate that Detective Sergeant Matemaunga’s evidence on the warned and cautioned statement was given when Paul Mungwena was still before the court. He recorded Paul Mungwena’s statement. Nowhere in his evidence did he state that he recorded a statement from the accused.

Detective Sergeant Cheza recorded the statement. Her role in the investigations was to record the statement. She did not know if the accused had been assaulted prior to the recording. She did not observe any injuries or signs of stress on the accused person. She denied handing a statement to the accused for signature only. The accused actually made a statement. Her cross examination did not elicit information in favour of the accused .What emerged is that the statement was recorded but the line of cross examination seemed to imply that the accused had been assaulted and threated that is why he made the statement. This was a departure from the initial challenge that he did not make the statement, it was handed to him for signature.

Of note is that the accused was arrested on the 15th of November and the statement was recorded on the 16th of November. Had he been assaulted there could have been some evidence of such assaults. Unfortunately, we were not favoured with details on how he was assaulted on which parts of the body and whether he sustained any injuries.

The detailed response in the warned and cautioned statement admits of no other conclusion except that the accused made the statement. Where the statement gives a detailed account of what transpired, depending on the circumstances a court is entitled to draw an inference that the accused made it. This is what the court had in mind in R v Sambo 1964 RLR 565 at 572 A-C where BEEADLE CJ said;

“If the accused remembers facts on his confession, the knowledge of which he could only have come by being connected with the crime, the mentioning of such facts will of course, the most cogent evidence to show that the confession is genuine. But even if the accused may have been questioned by the Police on these facts, that their mention still has considerable probative value. If an accused freely makes a long statement and all the known facts fit their proper sequence onto this statement, this may often be sufficient on which to base a conclusion that the confession is genuine, even if the police may previously have questioned the accused on these facts because unless the police put the actual words of the statement into the accused’s mouth, if his only knowledge of the true facts has come upon police questioning, he is hardly likely to present a coherent and convincing story into which all the known facts dovetail perfectly. A confession of such a type will often therefore, prove its genuineness.”

We demonstrate the extent of detail in the statement by reproducing it, this is what the accused said,

‘I do admit to the charge of assaulting the now deceased Listone Chikomba who later succumbed to the assault and died. I teamed up with Mugove Makiwa, Edmore Murindiwa, Paul Mungwena (Augustine) and Nathan Makiwa and proceeded to Battlefields from Kwekwe using Nathan Makiwa’s vehicle a Toyota Allion, after being informed by Nathan that there was a gold rush in Battlefields. When we got to Munyati we had some beer drinks and later proceeded with our journey to Battlefields. When we got to Battlefields Nathan Makiwa who was the driver drove the vehicle towards Gwanzura Compound. As we arrived at Gwanzura Compound Nathan Makiwa saw Livingstone Chikomba sitting on a bench in a shade with other people whilst others were playing snooker. He asked Listone Chikomba if he had done well by assaulting his nephew Courage Mudambo Tshuma and broke his fingers. I did not hear Listone Chikomba’s response. Nathan Makiwa started assaulting Listone Chikomba with open hands. Myself, Mugove Makiwa, Edmore Murindiwa, Paul Mungwena joined Nathan in assaulting the now deceased all over the body. Listone Chikomba the now deceased tried to run away but was intercepted by Mugove Makiwa. The now deceased was struck with an empty bottle on the forehead, but I did not see who struck him since I had fallen down. Paul Mungwena tried to strike him with a log but failed and threw away the log. Listone Chikomba ran away but Nathan Makiwa caught up with him and he fell down. Nathan Makiwa stabbed Listone Chikomba several times on his thighs and all over his body. Mugove Makiwa then struck Listone Chikomba with an empty beer bottle whilst he was still on the ground. I assaulted the now deceased Listone Chikomba with fists and kicked him with booted feet. After realizing that Nathan had stabbed the now deceased several times we stopped assaulting him. Nathan then ran into the motor vehicle and called us to go and we left Listone lying and bleeding.

What is accepted and not in dispute is that the statement was recorded on16 November, the investigating officer had not recorded statements from the state witnesses. We wondered how the police could have known the detailed information. For instance, how did the police know that Nathan had a nephew known as Courage Mudambo who was assaulted by the deceased? Crucially, the statement graphically describes how each accused person participated in the assault of the deceased.

The explanation on how the assault took place was corroborated by Zororai, Tendai and Tinamambo the state witnesses. The only missing link was that the witnesses could not identify the assailants. The witnesses confirmed that the deceased was assaulted while he lay helplessly on the ground. That one of the assailants had a knife. He stabbed the deceased several times on both legs, that others kicked and punched him, the last act was the striking of the deceased with a beer bottle.

It cannot be a coincidence that the accused’s statement given before the witnesses’ statements and the witnesses’ statements could be so strikingly similar. There is no way the police could have come up with such detail. It would be understandable had the response been short and curt like “I admit the charge”. Where the statement of the accused is so detailed on how he committed the offence, the court can only accept that he made the statement.

On his part, the accused could not explain how the police might have obtained that detail.

We therefore make a finding that the accused made the statement. He was not forced to sign a statement drawn up by the investigating officers.

The accused also challenged the confirmation proceedings. He contradicted himself at one point he said he appeared together with his co accused persons for the confirmation proceedings. Under cross examination he said he was alone. He also contradicted himself on the proceedings. Initially he said he answered positively since the police were in the court room signalling him not to deny anything. In other words, he was threatened. Finally, the accused said he initially went for confirmation where he advised the court that he did not make the statement. The statement was not confirmed.

We note that the accused’s approach to his case was to allege everything which certainly shows some untruthfulness. The averments cannot exist side by side they are mutually exclusive. If he was given a statement to sign therefore he was not assaulted to make a statement. Similarly if the officers were in court and he answered questions positively in fear of the police he could not have advised the court that he was assaulted.

Confirmation proceedings are provided under s113 of the Criminal Procedure and Evidence Act. The court confirming the statement must comply with the provisions of the section. The statement must be read to the accused. The magistrate must inquire from the accused if he made the statement, if so whether he made it freely and voluntarily. If the accused answers in the negative, as far as possible details must be given of how he was coaxed to make the statement.

The magistrate who confirmed the statement indicated that in the event that the statement is not confirmed, the practice is that the statement is endorsed ‘not confirmed’. This was not disputed. The accused indicated that only one statement was recorded from him. So if one statement was recorded and it was not confirmed, how did the police get the statement that was eventually confirmed? The probabilities are that there was no attempt to confirm the statement as alleged by the accused. We noted that Mr Farai did not cross examine the Magistrate on the actual confirmation proceedings, he concentrated on issues before the proceedings and what happens in the event the accused alleges that he was assaulted.

From the evidence placed before us, it was clear that the accused could not separate the initial remand procedure and the confirmation procedure. His defence counsel also took the instructions from his client hook, line and sinker.

The accused also alleged that the police officer was in the court when confirmation proceedings took place. This was denied.

There was no suggestion that the police and the Magistrate worked in cahoots to prejudice the accused. What the accused wants this court to believe is that the police falsely imputed an incriminating statement on him. Thereafter the Magistrate, in blatant disregard of court procedure confirmed the statement. In the absence of evidence proving that the Magistrate did not comply with the proper procedure the presumption of legality works against the accused.

We therefore come to the conclusion that the statement was properly confirmed in terms of s113 of the Criminal Procedure and Evidence Act. The accused failed to prove that he did not make the statement. He similarly also failed to prove that the statement was improperly confirmed.

The state witnesses were credible. We accept their evidence. They were cross examined extensively on the disparity in their evidence where some had identified the assailants by name and in court they disassociated themselves with the statements. We were urged to draw an adverse inference that the investigating officer concocted the statements to falsely incriminate the accused the way she doctored the warned and cautioned statement.In his cross examination of the police officers the accused’s legal practitioner spent so much time on some unfinished business between the police and this group.

We do not accept the interpretation by counsel. It is trite that the Court will always accept the evidence made under oath before it depending on the circumstances.

In the circumstances of this case we found that there are salient features that admit and may explain the variances by witnesses. The murder was committed by a group of artisanal miners. We could tell that witnesses were apprehensive. Tinamambo one of the witnesses said when the assault took place, he was scared he had to watch the brutal assault hiding behind his motor vehicle. He did not want the gang members to see him. Not even one person tried to restrain the group from assaulting the deceased. We can only conclude they were scared of Nathan’s group. Now, to consider that the deceased was being attacked for some conduct that did not please Nathan, what would happen to a witness who implicates them? Nathan is still out there in the community. Any inference is possible.

We therefore do not accept that the variation in the witnesses’ evidence was prompted by the alleged malicious police officers. It could have been more out of fear. In any event their evidence in court did not incriminate the accused person.

The defence case was pathetic to say the least. The accused was not a credible witness. As already stated he denied everything even the obvious. For instance, he denied making a bail application. He had to admit making it under re-examination.

I called for the record under B9/22 to have recourse to it. The accused indeed made an application through his legal practitioner of record. We wondered why he sought to mislead the court. He had the audacity to even deny that he had two children and a wife Idah which information he clearly stated in his application.

In the application for bail, the accused briefly alluded to his response to the charge. He said he was once within the vicinity of the scene of crime. In his defence before this court he completely denied being in the vicinity of the scene of crime. He also said in paragraph 4.1.5 he was arrested in a motor vehicle that he usually boarded. So he was known to the driver of the motor vehicle, he was a frequent passenger. The accused at some point in his defence said he did not know and had never associated with any of his co-accused. His statement in the bail application contradicts to some extent what he placed before this court. He knew Nathan before the commission of this offence. Nathan is said to be the owner of the Toyota Allion that ferried the accused and his accomplices to the scene of crime.

The accused simply misrepresented facts through and through. The court can draw an adverse inference against an accused who is shown to misrepresent facts. We associate with the sentiments in the case cited by the state of S v Mtsweni, that a false statement by an accused can be used to draw an inference of guilty from reliable evidence. This contention, however, must be weighed against proven facts.  In doing so, we took care to balance the accused’s   version of events surrounding the case against facts and probabilities given that he is the sole witness of what transpired and beneficiary of any exaggeration on his part. We treat his evidence with caution since he was untruthful on material aspects of the case as already demonstrated.

Having accepted the confirmed statement, we consider if there is evidence aliunde to establish that the offence was committed in line with s273 of the Criminal Procedure and Evidence Act, [Cap 9:07]. As already stated , in terms of the  provision an accused person can be convicted of an offence with which he is charged if he has confessed to having committed that offence provided that the offence has been proved to have been actually committed.

In this case, it has been proved beyond doubt that the deceased was attacked by a group of about five to six men. These men arrived in a Toyota Allion. Nathan was the owner of the motor vehicle. The post mortem report confirmed the death of the deceased and the cause of the death. The cause of death is consistent with the assaults as narrated by the witnesses and the accused. This evidence coupled with the accused’s statement admits of nothing except that the state proved its case beyond a reasonable doubt. Nathan intended to settle some scores with the deceased. The accused admitted that he was part of this group. He was aware why they proceeded to Battlefields. Nathan had told them about a gold rush. He was aware why Nathan attacked the deceased.

We have no doubt in our minds that the accused associated himself with Nathan and the rest of his accomplices in common purpose to brutally assault the deceased.

In its closing submissions, the state urged the court to find the accused guilty of murder with actual intention. We agree. This was a violent and senseless attack by a group of people on one person. The accused and his accomplices attacked the deceased with various weapons. A lethal Colombia knife was used to stab the deceased several times. The deceased tried to run away and they pursued him. Despite pleas from the deceased’s wife and mother the accused and his accomplices continued to assault the deceased. They stopped when they were satiated.The accused associated himself with such conduct. Under the doctrine of common purpose, the accused associated himself with this brutal murder. He was at the scene of crime, he participated in the assault and was well aware of the reason why they attacked the deceased.

This judgement cannot be complete without addressing the purported assault on the accused. We noted that Mr Farai was emotionally involved in the matter. His language describing the police in both the defence outline and the closing submissions was belligerent He referred them as “some ruthless and wicked ZRP CID Kadoma”. For all intents and purposes some measured language is expected of legal practitioners. This becomes a personal attack on the officers. Police Officers are law enforcement agents, where there are justified accusations these can still be made in measured language and to the appropriate authorities. The court does not condone such language from a senior counsel.

It cannot be ruled out that an investigation officer’s interest is to secure a conviction. However, it is not true that this can only be secured by way of assaults. This can also be achieved though proper investigations

The alleged assaults are said to have been reported, which was the proper approach. However nothing was placed before the Court to substantiate the report. Without making a determination on the assault since we have no evidence we can only conclude that there was an exaggeration of what transpired.

From the foregoing the accused is found guilty of murder with actual intention in contravention of s47 (1) (a) of the Criminal Law Codification Act

Sentence

Both counsel for the state and the defence addressed the court on whether the offence was committed in aggravating circumstances. For the defence, no meaningful submissions were made except that the court must take note that one Nathan was the gang leader and the accused was just an associate in the commission of the offence. For the state it was submitted that the offence was committed in an aggravating circumstances. It was committed in a public place in the full glare of members of the mining community. It was also preceded or accompanied by physical torture. Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on another person. It is more about the relative intensity of pain or suffering inflicted on the other person. The post mortem report clearly testifies to this point. We certainly agree, the offence was committed in aggravating circumstances.

In mitigation we considered the submissions made for the accused that he is a first offender with two minor children. He has spent 2 years in custody awaiting trial. In terms of s69 of the Constitution every person accused of an offence has the right to a fair and public trial within a reasonable time. Two years cannot be said to be reasonable time considering that he has been in custody. We also considered the trauma and stigma associated with the commission of such a heinous offence. Society would not only stigmatise the accused but his family too. We were advised that his family had broken down, his wife has left and the children have technically lost both parents. It is unfortunate that the family has broken down but this is a natural consequence that follows the commission of an offence.

In aggravation we will consider that the accused committed a serious offence. Once life is taken away it cannot be restored. A family has lost a father, a brother and a part of them through the accused and his accomplices’ unbridled behaviour. The offence was committed in aggravating circumstances. It was premeditated for Nathan intended to revenge the assault of his relative. This was a gang assault. The violence that permeated this murder is unprecedented the post mortem report  recorded  a total of fourteen stab wounds all over the deceased’s body  and some  were very deep. We were urged to impose a sentence of 30 years taking into consideration that the accused had been drinking beer and the pre incarnation period.

Murder is a serious offence and the court must strongly pronounce itself against it. The violence that has pervaded the artisanal mining community is shocking and at times stranger than fiction. This community has resorted to violence as a way to settle disputes. Alternative dispute resolution is no longer relevant and applicable. The Government and other stakeholders must intervene and tame this budding violent jungle before it spreads. This is a time bomb waiting to explode.

The appropriate sentence would be in the region of 25 years and above. In view of the pre-trial incarceration the sentence would be tampered with slightly.

Accordingly the accused is sentenced as follows,

22 years imprisonment.

National Prosecuting Authority, the State’s legal practitioners

Farai & Associates Law Chambers, accused’s legal practitioners