Charles Mwale v The State

### Preamble
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Judgment No. SC 49/21
Civil Appeal No. SC 417/20
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REPORTABLE  (46)

CHARLES     MWALE

v

THE     STATE

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, MATHONSI JA & KUDYA AJA

HARARE: MARCH 19, 2021 & MAY 17, 2021

K. Siyeba, for the Appellant

Ms K. Kunaka, for the Respondent

MATHONSI JA: 	This is an automatic appeal against conviction and the sentence of death imposed on the appellant by the High Court on 30 July 2020 following his conviction of murder with actual intent.

THE FACTS

The facts of the matter are generally common cause. At the time that he met his death Stephen Matiza (the deceased) was aged 49 years while the appellant was 25 years old.

On 30 October 2018 the deceased was in the company of the appellant and Enock Siliya while they were drinking alcohol at Margie Banda’s house located at a compound at Derus Farm in Chegutu. At about 2000 hours the three of them decided to call it a day and left the drinking place heading to their homes. Enock Siliya was the first to get to his homestead and when the trio were at his home, the appellant asked for an iron bar ostensibly for use as an object of self defence given that himself and the deceased were proceeding further to their homes through the night.

Once he was armed with the iron bar, the appellant rushed to catch up with the deceased who had continued pushing his red mountain bicycle proceeding home. The two of them walked along a path passing through a bushy area and as they approached a built up area, the appellant struck the deceased several times on the head with the iron bar forcing the deceased to stagger before falling to the ground. In doing so the appellant inflicted injuries from which the deceased later died.

The appellant robbed the deceased of his red mountain bicycle and black Microsoft cellphone. He left the deceased battling for life in the bushy area, while he beat a hasty retreat from the scene and proceeded to his house. As is usually the case where a crime has been committed, in his haste the appellant left his pair of slippers and the iron bar used to strike the deceased, lying at the scene of the attack.

Upon his arrest on 31 October 2018 the appellant was found in possession of the deceased’s red mountain bicycle which he had locked in his house, the deceased’s Microsoft cellphone with buddie line 0784 441 181 and a pair of blood-stained jeans. On 1 November 2018 the appellant gave a warned and cautioned statement to the police in Chegutu in which he admitted having caused the death of the deceased.

He gave a graphic account of how he had committed the offence starting from the time he left the deceased pushing his bicycle on his way home while he rushed to procure an iron bar from Enock Siliya, which he used to savagely attack the deceased and ending with arrest. The statement was later confirmed by a magistrate in accordance with the law and produced at the trial by consent.

The deceased’s body was examined by two forensic pathologists at Harare Central Hospital who compiled a very detailed post mortem report. The report lists about 13 generally contusive wounds including a total fracture of the left arm. The injuries were concentrated on the upper vulnerable part of the body mainly on the head. The cause of death was given as traumatic shock, displaced left humerus bone fracture and multiple injuries.

PROCEEDINGS A QUO

The appellant was arraigned before the High Court on a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). He pleaded not guilty to the charge but following a full trial in which four state witnesses gave viva voce evidence and only the appellant testified for the defence, the trial court returned a verdict of guilty of murder with actual intent.

The court a quo found that the appellant’s confession was corroborated by physical evidence in the form of the iron bar found at the scene and the fact that the deceased’s pockets had been turned inside out. In addition, the deceased’s property taken from him after he was fatally wounded, namely the bicycle and cellphone, were found in the appellant’s possession.

The court a quo correctly found that the leading of oral evidence was crucial in order to establish the appellant’s intention. It reasoned that the fact that the appellant had returned to Enock Siliya’s home to request for an iron bar later used as the murder weapon was indicative of pre-planning on the appellant’s part. It was the court a quo’s finding that the appellant’s motive was to rob the deceased of his possessions. Indeed, the proceeds of the robbery were recovered from the appellant together with his blood-stained jeans.

Relying on the provisions of s 221(1)(b) of the Criminal Law Code, the court a quo rejected the appellant’s defence of intoxication. The section provides that in specific intent crimes or crimes requiring proof of knowledge or a realization of a real risk or possibility thereof, voluntary or involuntary intoxication which does not affect requisite intention, knowledge or realization of the accused person, shall not be a defence to the crime concerned. Rather, the court may regard such intoxication as a mitigating factor when assessing sentence.

Regarding sentence, the court a quo concluded that the murder was committed in aggravating circumstances of pre-meditation. Apart from that, it was committed in order to facilitate a robbery. After weighing the mitigating circumstances of youthfulness and intoxication relied upon by counsel for the appellant, the court a quo came to the conclusion that the aggravation outweighed the mitigation. The court a quo also had regard to the callousness exhibited by the injuries inflicted on the deceased. It settled for capital punishment.

The appellant was aggrieved. He noted this appeal on the following grounds:

Ad conviction

1. The court a quo erred or misdirected itself in holding that the accused’s warned and cautioned statement amounted to a confession in circumstances where it did not unequivocally admit to the elements of the offence charged against him.

2. The court a quo erred and/or misdirected itself in admitting into evidence the accused’s clothes with blood in circumstances where the state did not produce same as an exhibit.

3. The court a quo erred or misdirected itself in holding that the accused had pre-planned the murder in circumstances where it was clear that the deceased and the accused had agreed to have a weapon to protect themselves against roughnecks.

Ad sentence

4. The court a quo erred or misdirected itself in awarding the death sentence in circumstances where (there) were extenuating circumstances.

5. The court a quo erred and/or misdirected itself in awarding the death sentence (where there were) no aggravating circumstances as required by s 337 of the Criminal Procedure & Evidence Act [Chapter 9:07].

6. The court a quo erred and/or misdirected itself in its failure to consider the accused’s intoxication as a mitigatory factor in terms of s 224 of the Criminal Law Code [Chapter 9:23].

SUBMISSIONS ON APPEAL

Mr Siyeba who appeared for the appellant challenged the conviction on the basis that the court a quo placed reliance on the warned and cautioned statement of the appellant. In his view, the court a quo fell into grave error by regarding the contents of the “caution” as a confession when it did not admit the elements of the offence of murder. As much as the appellant stated that he admitted the charge, so Mr Siyeba’s argument goes, he was only admitting to causing the death of the deceased but not to murder with actual intent.

Per contra, Ms Kunaka for the respondent submitted that the appellant made a confession which was produced at the trial unchallenged. In fact, I mention in passing that the production of the confirmed warned and cautioned statement could not be challenged and was indeed not challenged. Ms Kunaka submitted further that the court a quo did not rely on the statement only. It also took into account the oral evidence led at the trial.

On sentence, Mr Siyeba submitted that there was no evidence upon which the court a quo could draw the conclusion of pre-planning. He sought to place reliance on the evidence of Enoch Siliya which appeared to contradict the contents of the appellant’s statement.

Siliya stated that the appellant requested the iron bar in the presence of the deceased. In his statement, the appellant stated that he left the deceased pushing his bicycle on his way home and rushed to Siliya’s home to ask for the iron bar. For that reason, Mr Siyeba took the view that the court a quo misdirected itself by making a finding that there was pre-planning.

Mr Siyeba had nothing useful to say about the robbery. Yet it was common cause at the trial that the deceased had been found with his pockets turned inside out. He had also been robbed of his cellphone and red mountain bicycle. It was also common cause that the bicycle had been found locked inside the appellant’s house. Indeed, when the appellant was requested to unlock the door he indicated that he did not have the keys forcing the police to break open the door.

When that was done, “lo and behold” the mountain bicycle as well as the blood stained jeans were recovered from within.

THE LAW

The issue of the use of the appellant’s warned and cautioned statement is one entirely regulated by statute. It is dealt with in s 113 of the Criminal Procedure & Evidence Act [Chapter 9:07] providing for confirmation of the statement by a magistrate. Once confirmed, the admission of the statement before a court is governed by s 256 (1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The provisions read:

“(1) Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the by the prosecutor, whether such confession or statement was made before or after his arrest, or after committal and whether reduced into writing or not…

Provided that-

(i) a certified copy of the record produced in terms of s 115 B shall be admissible in evidence against the accused;

(ii)any information given under any enactment which provides a penalty for a failure or refusal to give such information shall not, on that account alone, be admissible.

(2)  A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof…”

The appellant’s statement in which he admitted to committing the offence was confirmed by a magistrate in terms of s 113 of Criminal Procedure & Evidence Act. This Court stated in S v Mangoma SC 36/20 that s 256 (2) of the Act places the onus on an accused person whose statement has been confirmed in terms of s 113 to prove that it was not made freely and voluntarily. Indeed, once the statement is confirmed it is admissible in court in terms of s 256 (1) of the Act upon its mere production by the prosecution.

Regarding sentence, that is governed by the provisions of s 337 (1) of the Criminal Procedure & Evidence Act as read with s 47 of the Criminal Law Code. The former gives the court a quo the discretion to pass the sentences of death upon an offender convicted of murder if it finds that the murder was committed in aggravating circumstances.

In terms of s 47 (2) of the Criminal Law Code:

“(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) ---

(ii) ---

(iii) kidnapping or illegal detention, robbery, hijacking, piracy or escaping from lawful custody; or.

(iv)	---“

(The underlining is for emphasis)

Subsection (3) of s 47 permits a court convicting an offender of murder to regard as an aggravating circumstance the fact that the murder was premeditated.

APPLICATION OF THE LAW TO THE FACTS

What this Court is called upon to determine is mainly two-fold. Whether the appellant was properly convicted and whether he was properly sentenced.

It is true that the conviction of the appellant was anchored on the confession that he made to the police. In that confession, as I have already stated, the appellant gave a detailed account of how he had killed the deceased and robbed him of his belongings. It is significant that the court a quo, to its immense credit, did not rely entirely on the confession. It was mindful of the need to have regard to viva voce evidence to determine the intention of the appellant.

To that end the learned judge a quo stated:

“The importance of oral evidence being led is to establish the accused’s intention. In this regard, I refer to State v Dehwe 1987 (2) ZLR 231 (SC). In the present case the accused pre-planned the deceased’s murder. This is why he went back to Enock Siliya’s home to ask for a weapon. The motive was to rob the deceased as is apparent from the warned and cautioned statement. The proceeds of the robbery were recovered from the accused. His blood stained jean trousers was also recovered.”

These were factual findings made by the trial court. It is trite that an appeal court can only interfere with factual findings of a trial court on the limited ground of irrationality. In other words, this Court must be satisfied, having regard to the evidence placed before the trial court, that the findings complained of are so outrageous in their defiance of logic or of acceptable moral standards that no sensible person who had applied his or her mind to the question to be decided could have arrived at such conclusion. See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670 C-D.

Other than attacking the admission of the warned and cautioned statement and the oral evidence on the recovery of blood-stained trousers, counsel for the appellant did not attempt to lay any basis for interference on appeal. In my view it would have been well-nigh impossible to assail the findings of the trial court in the circumstances of this case.

The evidence against the appellant was overwhelming. I must add in passing that having been found in possession of “stolen” items belonging to the deceased, the appellant was also struck by the doctrine of recent possession as provided for in s 123 of the Criminal Law Code. Possession placed the onus on the appellant to explain it. The court a quo was therefore entitled to infer that the appellant stole the bicycle and the cellphone because his explanation for his possession of them was clearly false. The owner was already dead.

I conclude that the court a quo was entitled to convict the appellant as it did, the evidence led by the state having been overwhelming. There is no merit in the appeal against conviction.

The appeal against sentence is also woefully devoid of merit as well. The starting point on sentence is that having regard to the penalty provisions in both the Criminal Procedure and Evidence Act and the Criminal Law Code which I have related to above, it was within the sentencing discretion of the court a quo to impose the death penalty.

It has been repeatedly stated that the guiding principle in an appeal against sentence is that punishment is pre-eminently the province of the trial court. It is that court which enjoys sentencing discretion and an appeal court should always be careful not to erode that discretion. See S v Matondora SC 146/20; S v Rabie 1975 (4) SA 855 at 857 D-F.

For the appellate court to interfere with the sentencing discretion of the trial court, it must be shown that there was a misdirection. The appellate court may not interfere merely because it would have imposed a different sentence had it been the court of first instance. If the sentence complies with the relevant principles, even if severe, it will not be interfered with on appeal. See S v Nhumwa SC 40/88; S v Sidat 1997 (1) ZLR 487 (S) at 491 B-D; Muhomba v The State SC 57/13.

I have stated the applicable principles where an offender has been convicted of murder as set out in the relevant statutes. It has not been shown that any misdirection occurred. The court a quo correctly found that the aggravating circumstances, that the murder was committed in the course of a robbery and was premediated as well as the callousness with which it was executed for outweighed the mitigation of youthfulness and intoxication.

In the result, it be and is hereby ordered that the appeal is dismissed in its entirety.

MAVANGIRA JA    				I agree

KUDYA AJA					I agree

Bherebhende Law Chambers, appellants’ legal practitioners

The Prosecutor General, respondents’ legal practitioners