Doubt Mathe v The State

### Preamble
Judgment No. SC 66/24
1
Criminal Appeal SCB 36/23
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REPORTABLE    (66)

DOUBT     MATHE

v

THE     STATE

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHITAKUNYE JA & KUDYA JA

HARARE: 22 NOVEMBER 2023 & 11 JULY 2024

Ms A.S. Ndlovu, for the appellant

Ms L. Chitanda, for the respondent

CHITAKUNYE JA:		This is an appeal against the whole judgment of the High Court of Zimbabwe (the court a quo) dated 6 April 2023 in which it convicted the appellant of murder as defined in s 47 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23] and subsequently sentenced him to death.  In the main, the appellant seeks that he be acquitted of the charge of murder.  In the alternative, that the sentence of death be quashed and substituted by a prison sentence of 10 years. In a further alternative that the proceedings against the appellant be permanently stayed.

FACTUAL BACKGROUND

The appellant was charged with the crime of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as the “Criminal Code”). The appellant was twenty-one years old at the time the crime was committed.  The allegations were that on the night of 14 June 2008 and at Mutengate Village, Makainganwa, Chief Sai, Gokwe North, the appellant, in the company of two accomplices, unlawfully caused the death of Taurayi Mache by assaulting him with a hoe handle, intending to kill him or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite such risk or possibility.  The appellant denied the allegations.

Taurai Mache (the deceased) was employed as a security guard by Grafax Cotton Company based at Mutengate buying point.  On 14 June 2008 he reported for duty around 1800 hours.  During the course of that night the appellant in the company of two accomplices approached the deceased at his guarding post.  They assaulted him on the head several times with a hoe handle and left him for dead.  They then proceeded to break into Winnie Sigwala’s house.  Winnie was employed as a buyer by Grafax Cotton company and was based at the premises the deceased was guarding.  After breaking into Winnie’s house, they threatened her with assault.  In their threats they indicated that they had killed Taurayi and if she resisted, they would do the same to her.  As a consequence, she capitulated to their demands and indicated to them where the money was.  They stole Z$50 billion, two inverters and a generator after which they fled from the scene.

At the break of dawn, a 12-member track team was constituted by villagers.  The team tracked footwear prints picked at the scene where the deceased was assaulted.  The spoor led them along a road and later off the road to a gully in the bush where they spotted the appellant and two accomplices.  This was about 10 kilometres from the scene of crime.  The team split into 3 smaller units as they stealthily approached the three persons they had spotted in the gully.  Each unit approached the trio from a different direction in a bid to ensure the trio did not escape.  As the units were getting closer to where the trio was, they overheard the trio discussing their loot.  Upon realizing that people were approaching, the trio fled in different directions.    The appellant and his accomplices were pursued and captured by the village track team, however one escaped and the other is now deceased.

The appellant was consequently charged with robbery and murder in terms of the Criminal Code.  On the charge of robbery, he was arraigned before the Gokwe Regional Magistrate’s Court and he was acquitted.  On the charge of murder, the appellant was indicted in the High Court.

PROCEEDINGS BEFORE THE COURT A QUO

In the court a quo, the appellant pleaded not guilty to the charge of murder.  The respondent led evidence from three witnesses namely, Winnie Sigwala, Rennias Chakafa and Sgt Samson Chidembo.  The post mortem report by Dr I. Jekenya was tendered into evidence as an exhibit and it revealed that the cause of death was, inter alia, severe brain hemorrhage, skull fracture and assault.

The first witness, Winnie, testified that it was past midnight of 14 to 15 June 2008 when she was awakened by the noise of people who were breaking into her house.  They threatened to kill her as they had done to the guard if she did not give them the money they were demanding.  In fear, she directed them to the kitchen unit which they broke and took Z$50 billion.  One of the intruders went into the bedroom and took her ‘monarch’ bag.  She further testified that the intruders also took two inverters and a generator.  One of them ordered his accomplice to kill her, however, the other accomplice who was outside reprimanded his accomplices against killing her and they then left.

She also testified that she did not see the faces of the intruders, as they ordered her not to look up.  She, however, was able to recognize the voice of Attend Tanyanyiwa as she knew him from the locality.  She further stated that as there was a lit lamp on the floor, she noticed that one of the perpetrators was wearing plastic push-ons commonly known as ZICOs, blue in color whilst the other intruder was wearing white push-ons.

Winnie further testified that after the intruders had left, she called out to her neighbours.  They proceeded to check on the deceased and discovered that he had been assaulted, his head and face were swollen and he could not speak.  They then noticed some footwear prints near the deceased and outside the house which they covered with plastic dishes in order to preserve the prints.  The matter was reported to the village head and subsequently to the police. A village track team was constituted.  The track team left and later came back with the appellant and Attend.

Winnie testified that as she had not seen the faces of the robbers, she was unable to identify them by their faces.  She, however, observed that the appellant was wearing plastic blue push-ons whilst Attend was wearing white push-ons.  The footwear prints matched the footwear prints observed at the scene.

The second witness, Rennias Chakafa, gave evidence to the effect that he was part of the track team that tracked and apprehended the appellant and his accomplices in a gully discussing the items they had stolen.  He gave graphic details of how they tracked the spoor from the scene of crime to where they located the appellant and his accomplices in a gully.  He confirmed that as they followed the spoor, they noted that there were 3 sets of shoe prints signifying that there were three people involved.  After about 10 km the spoor branched off into the bush.  As the area was sandy, they were able to follow the spoor into the bush.  Upon noticing three people seated in a gully, the track team split into three units in a horse shoe formation as they approached the trio who were in the gully.  The units approached the trio from different directions in a bid to ensure that they did not escape.  As they stealthily got closer, they overheard the trio discussing their loot.  When the trio realized that there were people approaching, they fled in different directions.  The appellant fled in the direction closer to the unit that included Chakafa. Chakafa and his unit chased after him and apprehended him after about a 100 metres of chase.   Chakafa stated that he was the first to apprehend the appellant.  Attend, who had fled in another direction, was apprehended by the unit that included Kennedy Machaya.  It was his evidence that after apprehending the appellant, they brought him back to the gully where they recovered the items that had been stolen from Winnie’s house.  He also stated that he noted that the appellant was wearing blue push-ons whilst Attend, who had been apprehended by Machaya’s unit, was wearing white push-ons.

Back at the scene with appellant and his accomplice, Chakafa testified that upon comparison he noted that the footwear worn by the appellant and Attend matched the footwear prints that had been observed at the scene whose spoor they had followed to the gully.  The witness further stated that the hoe handle which they recovered from the scene of the crime had some blood stains.

The respondent’s third witness, Sgt Samson Chidemo, was the Investigating Officer in the matter.   He testified that he recovered a hoe handle at the scene of the crime which had some blood stains.  He averred that at the time he attended the scene the shoe prints that were still visible belonged to Attend and those of the appellant were no longer very clear.  He also stated that the appellant in his initial statements and during investigations never mentioned anything about his alibi, that he was not in the area when the offence was committed.  The witness also testified that he never found any money or empty bags which would have aided the defence  that he had only come into that area to buy peanuts on the day of his arrest.

The appellant, in his defence, led evidence to the effect that on 13 June 2008 he was sent by his mother to buy peanuts in Sai area but he undertook the journey on 14 June 2008 in the morning.  He stated that he had a black bag which contained Z$15 billion dollars and empty bags.  The appellant averred that he boarded a bus from his village to Gokwe Centre.  Thereafter he boarded a lorry from Gokwe Centre to Sai area and dropped off at Majanka upon seeing a lady with bags of peanuts.  He then inquired from that lady as to where he could get some peanuts as well and she directed him to a nearby village.  The appellant stated that as he was on the verge of that village, he met two young men along the road whom he asked for directions to where he could buy peanuts.  The appellant further testified that it was then that they were accosted by a group of people chanting political party songs.

The appellant further testified that the group of people started to assault them.  Attend then admitted that he knew where the stolen property they were inquiring about was and that the appellant knew nothing about it.  According to the appellant, Attend led them to a gully and the stolen property was recovered.  The appellant further stated that the group of people took his bag and they discovered the money that was inside it which they alleged was part of the stolen money. The appellant testified that he was acquitted of the charge of robbery at the Regional Magistrates’ Court, Gokwe, on the same set of facts therefore he was not guilty of the charge of murder.

The court a quo in its judgment of 25 January 2017 (HB26/17) held that the respondent’s witnesses were credible as their testimonies were very clear and could not be faulted.  On the defence of alibi raised by the appellant in his defence outline, the court a quo held that it was unsustainable on the basis that the appellant had testified that he arrived in the village on 14 June 2008, the same day that the deceased was attacked.  Further, the court a quo held that the defence of alibi was also unsustainable because the appellant did not raise that defence with the investigating officer upon his arrest but only raised it at the time of trial at Gokwe Regional Court in his defence outline.

The court a quo further held that the appellant did not challenge the respondent’s evidence that he was wearing blue push-ons and he was found discussing the loot.  The court also noted that at the time the appellant raised the defence of alibi all the people he mentioned and who could have corroborated his defence, if it had any credence, were either dead or could not be located, that is, his mother and Attend, who were both deceased, and his other accomplice by the name Tonde who could not be located.

The court a quo further held that the manner in which the deceased was attacked proved that there was intention to kill him.  In terms of s 196A (2) of the Criminal Law Code the court indicated that there was no need to establish who amongst the three robbers struck the fatal blow or the role that the appellant played.

In sentencing the appellant, the court a quo held that the murder was committed in aggravating circumstances of robbery and unlawful entry into a dwelling house.  In the result, the court sentenced the appellant to death.

Disgruntled by that conviction and sentence, the appellant noted an appeal to the Supreme Court under SC 453/17.   At the hearing of the appeal the court issued the following order:

“IT IS ORDERED BY CONSENT THAT,

The appeal succeeds.

The judgment of the court a quo is set aside.

The matter is remitted to the court a quo for that court to investigate the allegation that the appellant was acquitted on the same facts on a charge of robbery after which the court is to determine the guilt or otherwise of the appellant and, if applicable, the appropriate sentence.”

Pursuant to the above order, the record of proceedings in the Regional Magistrate Court wherein the accused was acquitted of robbery was produced before the court a quo by consent.   At the hearing, counsel for the respondent submitted that the order by the Supreme Court called upon the court to consider whether the defence of autrefois acquit was available to the appellant in light of his acquittal on the charge of robbery.  Further, he submitted that the court also had to consider whether there was an impermissible splitting of charges of robbery and murder as a result of which the appellant was prejudiced.

Counsel for the respondent proceeded to argue that the defence of autrefois acquit had no application because the appellant was never in jeopardy of being convicted of the murder of the deceased throughout his trial on the charge of robbery.  Counsel submitted that there was no such risk as the two offences were different.  On the issue of splitting of charges counsel submitted that different facts confronted the appellant in the robbery charge where the complainant was Winnie.  According to counsel, in respect of that charge it was the Regional Magistrate’s Court which had jurisdiction. Further, counsel submitted that the facts needed to prove the charge of robbery were completely different from those in the murder charge.  It was also argued that the respondent as dominus litis had the discretion to prefer the charges separately before different courts of competent jurisdiction.

Counsel for the appellant conceded that the requirements for the sustenance of the defence of autrefois acquit were not met in the present case.  Counsel submitted that the charges of robbery and murder were materially different and nothing turned on the acquittal of the appellant on a charge of robbery.  On the splitting of charges counsel submitted that the appellant did not suffer any prejudice because the Regional Magistrate Court did not attempt to relate to the murder case.  Counsel further submitted that the evidence of Winnie before the lower court was not of much relevance in the murder trial thus there was no need for the witness to be recalled for further cross examination.

The court a quo in its second judgment of 6 April 2023 (HB63/23) found the appellant guilty of murder as charged and sentenced him to death.  In arriving at its decision, the court a quo held, inter alia, that the appellant had not been charged with murder twice.  The court a quo further held that in the Regional Magistrate Court, the appellant faced the charge of robbery based on the alleged break-in and forcible dispossession of some property at Winnie’s house.  The court a quo reasoned that to the extent that he was acquitted in respect of a different offence, the defence of autrefois acquit was not available to him.

Further, the court a quo held that it could not place reliance on the evidence given before a lower court which evidence was not given before it.  The court, however, held that the appellant was entitled to use the evidence given in the Regional Magistrates Court to cross examine the witnesses who testified on behalf of the respondent during the murder trial.  The court further held that during the robbery trial the respondent deliberately avoided adverting to the facts relating to the murder of the deceased and the appellant was acquitted without reference to the entirety of the facts that were presented during the murder trial.

The court a quo, applied the single evidence test and held that as the evidence required to prove the charge of murder was complete and independent of the evidence required to establish the charge of robbery, there was no splitting of charges.  The court found that the evidence used to prove the charge of murder such as the post mortem report, the blood-stained hoe handle used to kill the deceased, and the evidence of the track team which apprehended the appellant was independent of the evidence that constituted the essential elements of the robbery charge.

Applying the single intent test the court held that there was no improper splitting of charges for the reason that the appellant’s intention went beyond the single intention of committing a robbery.  The court a quo reasoned that if the appellant and his accomplices indeed merely wanted to rob Winnie, they would have incapacitated the deceased by tying him because they outnumbered him.  The court therefore held that the appellant was properly charged with murder.

In respect of sentence, counsel for the appellant submitted that the Supreme Court order was not clear if the court had been empowered to review the sentence imposed earlier.  However, counsel submitted that since the appellant had been in custody for six (6) years from the date of his earlier conviction and sentence, the court ought to impose a sentence other than death.

Counsel for the respondent initially submitted that the court was at liberty to substitute another sentence.  However, after engagement with the court she submitted that there was no legal basis upon which the court could review its earlier sentence.

The court a quo held that there was no legal foundation established upon which to alter the sentence imposed earlier.  The court reasoned that the murder was unnecessary and it was committed in aggravating circumstances of robbery and unlawful entry into a dwelling house.  The sentence of capital punishment was maintained.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the decision of the court a quo the appellant appealed to this Court on the following grounds of appeal:

Against Conviction

The court a quo erred in excluding the defence of autresfois acquit under section 70 (1) (m) of the Constitution of Zimbabwe, when the accused had been acquitted on the same conduct of using violence against the deceased person in order to effect a robbery.

The court a quo erred in dismissing the appellant’s defence of alibi using its previous judgment, when such judgment had been set aside and when the evidence in the record of proceedings of the Magistrates Court corroborated the same and therefore raised a reasonable doubt.

The court a quo erred at law and in fact in determining that the appellant had the requisite mens rea to sustain a murder charge.

The court a quo erred in finding that the accused had a fair trial in light of having been tried on the same facts before, not having competent legal representation, and the delay of 9 years in bringing him to trial and a further 6 years to bring him to his second trial after he succeeded on appeal.

Against Sentence

The court a quo erred in passing the death sentence in light of the fact that the appellant had been acquitted on the charge of robbery, and therefore robbery could not exist as an aggravating circumstance.

The court a quo erred in finding that there were no grounds upon which it could review its earlier sentence yet the Supreme Court order directed it to do so.

SUBMISSIONS BY COUNSEL

Counsel for the appellant, Ms Ndlovu, raised a preliminary objection regarding the interpretation of the order issued by the Supreme Court on 27 November 2017.  According to counsel, the preliminary objection raised the issue of whether or not the court a quo properly discharged its mandate of hearing the matter de novo and reconsidering the guilt of the appellant. Counsel submitted that the court a quo was supposed to reconsider the conviction and sentence of the appellant considering the fact that the record from the Regional Magistrate Court had been incorporated into the proceedings.  She further submitted that the court a quo was also tasked with investigating the set of facts relating to the robbery charge.

Per contra, counsel for the respondent, Ms Chitanda, submitted that the mandate of the court a quo, was to review and investigate the issue of whether the appellant had been acquitted of the charge of robbery on the same facts as those that resulted in his conviction on the charge of murder.

On the merits, counsel for the appellant submitted that the defence of alibi should have been upheld as there was no piece of evidence that placed the appellant at the scene of the crime. According to counsel, the defence of alibi had been corroborated by the fact that the appellant was not in that particular village when the crime took place.  Counsel further submitted that the evidence of Chakafa had been undermined by the evidence raised in the Regional Magistrate Court by a different member of the tracking team, Machaya.  Counsel also submitted that the evidence of Chakafa could not be relied on entirely as he was part of the group that apprehended the appellant and his co-accomplices, one of whom died from being assaulted by the group.

Counsel further submitted that the appellant suffered double jeopardy as he had been sentenced on the basis of a robbery for which he had been acquitted in the Regional Magistrate’s Court.  Counsel submitted that the court a quo erred in sentencing the appellant to death on the basis that the murder had been committed in aggravating circumstances in the course of a robbery.

Counsel for the respondent, on the other hand, submitted that the court a quo did not misdirect itself in convicting and sentencing the appellant to death.  She submitted that the respondent had been able to prove its case beyond a reasonable doubt.  She further submitted that the defence of alibi was unsustainable on the basis that it had been belatedly raised in the Regional Magistrates Court at trial.  Counsel submitted that the appellant did not even raise his defence of alibi with the investigating officer. She submitted that the evidence of Winnie regarding the blue push-ons further showed that the appellant was in the village when the crime was committed.

ISSUES FOR DETERMINATION

The above grounds of appeal and submissions made raise two issues for determination which are:

Whether or not the court a quo correctly interpreted the Supreme Court order of 27 November 2017.

Whether or not the court a quo erred in convicting and sentencing the appellant to death.

ANALYSIS

Whether or not the court a quo correctly interpreted the Supreme Court order of 27 November 2017.

Ms Ndlovu, for the appellant, raised a preliminary objection regarding the interpretation of the Supreme Court order issued in 2017.  In this regard counsel argued that the court a quo was in effect asked to conduct a trial de novo.

Paragraph 3 of the Supreme Court’s order of 27 November 2017 stated that:

“The matter is remitted to the court a quo for that court to investigate the allegation that the appellant was acquitted on the same facts on a charge of robbery after which the court is to determine the guilt or otherwise of the appellant and if applicable, the appropriate sentence.”

What the court a quo was tasked with was to inquire into the allegation that the appellant had been acquitted of the charge of robbery on the same set of facts.  After such inquiry, to consider the implication of its findings on the guilt or otherwise of the appellant.  Further, in the event it found that he was still guilty of murder, the court a quo was to proceed to consider an appropriate sentence.

The rules of interpretation are clear that where the language used is plain and unambiguous it should be given its ordinary meaning unless that would lead to some absurdity or inconsistency with the intention of the author.  In Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) at 264 D-E Mcnally JA said:

“There is no magic about interpretation. Words must be taken in their context.  The grammatical and ordinary sense of the words is to be adhered to, as LORD Wensleydale said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”

In casu, the court a quo was tasked to investigate the allegation that appellant had been acquitted of robbery on the same set of facts as on a charge of murder.  The term investigate is essentially to carry out a systematic or formal inquiry to discover and examine the facts of an incident or allegation so as to establish the truth.

I am persuaded by the respondent’s submission that the court a quo was mandated to investigate the issue of whether the appellant had been acquitted of the charge of robbery on the same facts and to thereafter consider the effect thereof on the murder trial.  The court a quo was not mandated to conduct a trial de novo as the appellant’s counsel argued. A trial de novo entails a retrial of the matter afresh.  That is not what was ordered by the Supreme Court. The Supreme Court did not quash or set aside the proceedings a quo as would have been expected where a trial

de novo is ordered. The appellant’s counsel’s preliminary point in this regard has no merit.

Whether or not the court a quo erred in convicting and sentencing the appellant to death.

Counsel for the appellant submitted that the court a quo erred in excluding the defence of autresfois acquit under s 70 (1) (m) of the Constitution of Zimbabwe. The said s 70 (1) (m) provides that:

“Any person accused of an offence has the following rights-

not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits.”

In addressing the issue of autresfois acquit, counsel for both appellant and respondent a quo, were agreed that the principle of autrefois acquit was not applicable for the reason that the offences were not the same and the facts needed to prove each offence were not the same. The appellant had not been tried and acquitted on the charge of murder.   Whilst appreciating that the two offences arose from the same incident the court a quo held that the acquittal of the appellant was not based on all the facts needed to prove the charge of murder but on some of the facts.  It was also clear that in the robbery case there was no reference to the killing of the deceased, let alone a charge of murder.

The submission by appellant’s counsel to the effect that the court a quo should have relied on the Regional Magistrates Court’s record of proceedings as corroboration of the appellant’s defense, and that the evidence of Kennedy Machaya should have been preferred to that of Chakafa was misplaced. That submission seemed oblivious of the legal position on the evidential value of evidence given in prior proceedings. The court a quo aptly noted that it could not place reliance on the evidence given before a lower court in the trial for robbery when such evidence was not given before it for its own assessment thereof.  The court a quo was not expected to abdicate its duty to make its own assessment of the evidence placed before it in preference to evidence in a lower court’s record of proceedings.  In this regard it referred to the position of the law regarding the evidential value of evidence adduced in other matters as espoused in Nherera v Shah 2019 (2) ZLR 462 (S) at 474B-H.  In paras 43 - 45 thereof this Court held that:

“[43]	A record of a witness’s evidence in earlier judicial proceedings is ordinarily hearsay at common law, but there are exceptions in which such evidence can be tendered to prove the truth of the facts which the witness has stated. It is usual for the record of an inquest or criminal trial to be made an exhibit at a subsequent civil trial, but at common law its evidential value is only to prove that the witness said what they are recorded to have said. Further, at common law, the testimony of a witness in earlier judicial proceedings is admissible at a subsequent trial provided that (a) the proceedings are between the same parties or their privies (b) the issues are substantially the same (c) the witness cannot be located because he is dead, insane, too ill to attend, kept out of the way by the opposing party, or (in civil cases) beyond the jurisdiction and (d) the opposing party had a full opportunity to cross-examine him – Hoffman & Zeffert, The South African Law of Evidence, Fourth Edition, at p 152.

[44]	The reason for this common law position is simple.  This is because, if the court were to act on the basis of evidence given before another court:

‘… the court is deprived of the opportunity of first-hand experience of the witnesses’ demeanour, and much of the force of cross-examination is lost if it does not take place before the tribunal which has to accept or reject the evidence ….” – Cross on Evidence, 5th Edition 1979, London, Butterworths at p 568.’

[45]	Like in South Africa, the admissibility of earlier testimony in subsequent proceedings is now largely codified.  Section 28 of our Civil Evidence Act [Chapter 8:01] provides:

‘(1) Where a person has previously-

given evidence; or

made an affidavit that was produced in evidence; in any legal proceedings, whether civil or criminal, and he has died or cannot be found or compelled to give evidence or for some other good and sufficient cause cannot reasonably be called to give evidence in or make an affidavit for the purposes of any subsequent civil proceedings, a document which purports to be;

a transcript of his evidence or a copy of his affidavit, as the case may be, in the former legal proceedings; and

certified by the official having custody of the record of the former legal proceedings as a true transcript of the evidence or copy of the affidavit, as the case may be, shall be admissible on its production by any person as evidence of the fact stated therein.

(2)	Subsection (1) shall apply even if the evidence concerned was not recorded verbatim and the transcript of the evidence was taken from notes made by the person presiding at the proceedings.’

Section 51 of the same Act provides that the fact that any evidence is rendered admissible by this Act shall not oblige a court to believe or rely on such evidence.”  (my emphasis)

It is pertinent to note that s 255 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the Act) provides for the admissibility of evidence of absent witnesses in certain circumstances in these terms:

“(1) The evidence of any witness—

given at a former criminal trial of an accused on the same or a different charge and recorded in a document purporting—

(i) to be a transcript of the original record of the said evidence; and

(ii) to have been certified as correct under the hand of the person who transcribed it; or

whose deposition has been verified in terms of section 115A;

shall, subject to subsection (2), be admissible in evidence on the trial of the accused for any offence.

(2) The evidence of a witness referred to in subsection (1) shall not be admissible unless—

it is proved on oath to the satisfaction of the court that the witness—

is dead or is incapable of giving evidence, or that he or she is too ill to attend; or

(ii) is kept away from the trial by the means and contrivance of the accused; or

(iii) cannot be found after diligent search, or cannot be compelled to attend; or

(iv) is an expert witness whose evidence is given in his or her capacity as an expert witness, and that the nature of the witness’s professional commitments is such as to render it impossible to secure his or her attendance at the trial on any given day; and that the evidence is the same that was given at the previous criminal trial or at the conference referred to in section 115A, as the case may be, without any alteration; and

it appears on the record or is proved to the satisfaction of the court that the accused, personally or by his or her legal representative, had a full opportunity of cross-examining the witness, even if the accused or his or her legal representative, did not avail himself or herself of that opportunity.”

(my emphasis)

In casu, the witnesses who gave evidence in both the robbery and murder trials, Winnie and Chidembo, were available.  They were both cross-examined and when counsel was asked if he wished to cross examine them again after the remittal of the matter he declined to do so.

There was no indication that the witnesses, Kennedy Machaya and Regis Munodawafa, who gave evidence in the robbery trial but not in the murder trial, were either dead or ill-disposed to testify at the remittal.  For their evidence in the Regional Magistrates Court to have any probative value they needed to testify and be subjected to cross examination.  Counsel for the appellant, upon a perusal of the record of proceedings from the Regional Magistrate’s Court, declined to have them called for examination despite the court a quo availing such an opportunity.  The court a quo cannot be faulted for its decision in this regard.

It would have been a misdirection on the part of the court a quo had it relied on the evidence adduced in the Regional Magistrate’s Court in deciding on the guilt or otherwise of the appellant without making its own assessment of the evidence given before it and the demeanour of the witnesses.

On the defence of alibi, Counsel for the appellant argued that the court a quo erred in convicting the appellant and that the defence of alibi ought to have been sustained as he was not in the village on the day that the crime was committed.

Counsel for the respondent contended that the defence of alibi could not be sustained for the reason that it had not been raised during investigations and was belatedly raised for the first time at the trial for robbery at the Regional Magistrates Court.  The defence was conveniently raised when all the persons appellant mentioned had passed on.

An alibi is a statement of defence to the effect that a person accused of a crime was at a specific place different from the crime scene.  It is trite that an accused person who raises a defence of alibi has no onus to prove his defence, the State has the duty to dispute such defence.  Therefore, appellant did not have the onus to prove his defence of alibi.  In R v Difford 1937 AD 370 it was stated that there is no onus that rests on the accused to convince the court of any explanation even if that explanation is improbable.

In the court a quo, the appellant contended that he was in Chireya, Gokwe North at the time the crime was committed.  However, in as much as the appellant did not have the onus to prove his defence, he failed to lay facts that supported his defence.  This is so because in his defence outline he stated that he left his village at Chitekete in the early hours of 15 June 2008 and got to Chief Sai’s area around 11 am on the same day of his arrest.  In his viva voce evidence, he stated that his mother instructed him to go and buy peanuts on 13 June 2008 and he set off for Chief Sai’s area on the morning of 14 June 2008.  He arrived in the area of arrest on that same day, 14 June 2008, which date would show that by the evening of that date he was in the area of the crime.  However, irrespective of which date he arrived, he said he arrived in the area in question at mid-morning of that date.  As is common cause the deceased was fatally attacked in the evening of 14 June thus, the defence could not be sustained as he was in the area when the crime was committed. The date he maintained under oath thus placed him in the area of the crime at the time the offence was committed.

The appellant’s defence was further dented by the fact that he never raised such a defence to the investigating officer until the time of trial for robbery at the Regional Court.  The appellant did not deny that the defence of alibi was raised for the first time at that trial.  A defence of alibi is expected to be raised as soon as possible upon arrest, or at the very least during the early stages of investigations if it is to have any credence.  In casu, the appellant never raised such a defence with the investigating officer so that it could be investigated.   The appellant did not dispute this.

Section 257 of the Act provides that:

“Where in any proceedings against a person evidence is given that the accused, on being—

questioned as a suspect by a police officer investigating an offence; or

charged by a police officer with an offence; or

(c) informed by a police officer that he might be prosecuted for an offence;

failed to mention any fact relevant to his or her defence in those proceedings, being a fact   which, in the circumstances existing at the time, he or she could reasonably have been expected to have mentioned when so questioned, charged or informed, as the case may be, the court, in determining whether there is any evidence that the accused committed or whether the accused is guilty of the offence charged or any other offence of which he or she may be convicted on that charge, may draw such inferences from the failure as appear proper and the failure may, on the basis of such inferences, be treated as evidence corroborating any other evidence given against the accused.”

In casu, the appellant upon arrest and throughout the investigations was aware that the allegation entailed that he was in the area and at the scene of crime on the night of 14 June 2008.  Had he not been in the area at the time in question he was ordinarily expected to have stated so to the police but he never did. Not only was this a relevant fact to his defence but it was his only defence.  The mention of such a fact at the earliest available opportunity would have been so obvious for anyone intent on raising alibi as a defence.  His failure to so mention may only go to support the evidence that he was in the area. It is also pertinent to note that the appellant chose to belatedly raise the defence of alibi at a time when two of his potential witnesses, had his alibi been true, his mother and Attend, were dead and the third one was missing.

In addition to the unsustainability of the defence of alibi, it is also common cause that upon being apprehended the appellant was wearing blue push-ons which matched the footwear prints observed on the crime scene and the ones Winnie had seen being worn by one of the assailants.

Further, during his cross examination the appellant contended that he had Z$15 billion dollars and 5 empty bags, however, he did not state this in his defence outline.  On the other hand, Chakafa testified that nothing had been recovered from the appellant in the form of the Z$15 billion or the 5 bags he referred to and this was never disputed by the appellant.  Further, the appellant did not share this vital information with the Investigating Officer as well because according to the appellant he was never asked anything about these items. The appellant failed to proffer facts relating to his alibi during the investigations and even when the allegations were first put to him.

By failing to clearly state his defence of alibi, the defence cannot be sustained. (See Madya v The State SC88/23).  The argument by counsel that the defence of alibi had been corroborated cannot be sustained.  This is due to the fact that there are a lot of loopholes in the appellant’s defence hence the Court a quo could not uphold such a defence.  The court a quo cannot be faulted for not upholding the defence of alibi in the circumstances.

Counsel for the appellant also argued that the evidence of Chakafa could not be relied on entirely as he was part of the group that led to the death of Attend.  The fact that one of the accomplices allegedly died from being assaulted by the mob of villagers does not take away the authenticity of the evidence by Chakafa.  The death of Attend was not an issue before the court a quo.  The argument by counsel cannot be sustained as Chakafa was part of the group that apprehended the appellant and recovered the stolen property in the possession of the appellant and his accomplices.  Thus, the court a quo upon assessing the evidence of Chakafa and his demeanour found him to be a credible witness.  A finding of credibility by a trial court cannot be lightly dismissed unless it is clearly shown that the trial court misdirected itself on certain fundamental aspects in its assessment so as to vitiate its findings.  In casu, the court a quo’s credibility findings are unassailable.

Sentence

It is trite that the question of an appropriate sentence to impose is within the discretion of the trial court. An appellate court is loath to interfere with the exercise of such discretion unless it is shown that the discretion was not properly exercised.  In casu, counsel for the appellant argued that the appellant suffered double jeopardy as he had been sentenced on the premise that the murder was committed in the course of a robbery.

In the court a quo, the appellant was sentenced to death as the court held that the murder had been committed in aggravating circumstances.  In terms of s 337 of the Act, the High Court may pass a death sentence upon an offender convicted by it of murder if it finds that the murder was committed in aggravating circumstances.

The appellant was convicted of murder in terms of s 47 (1) of the Criminal Code. Section 47 (2) thereof provides that:

“(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)—

an act of insurgency, banditry, sabotage or terrorism; or

the rape or other sexual assault of the victim; or

kidnapping or illegal detention, robbery, hijacking, piracy or escaping from lawful custody; or

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”

(My emphasis)

It is apparent that a finding of aggravating circumstances is not dependent on the conviction of the accused person of that other offence, hence the provision that “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).”

In casu, the court a quo found that the appellant and his accomplices unlawfully entered Winnie’s house and in the process of gaining entrance they severely assaulted the deceased.  In the Regional Magistrates court, the appellant was acquitted of the charge of robbery.  However, it was not a requirement that the appellant must have been convicted of robbery for a death penalty to be imposed.  The appellant did not suffer any double jeopardy in his sentence as such sentence was not dependent on a conviction for any other offence but simply in connection with a commission of another offence or any act constituting an element of such other crime.  The murder was clearly committed in aggravating circumstances.  The facts that the court a quo found proved show that whoever assaulted the deceased, proceeded to break into Winnie’s house and robbed her of the items stated earlier.  The assault was intended to incapacitate the deceased, as the guard, from interfering with the criminal intention of robbery.  Thus, once it was proved beyond reasonable doubt that appellant was one of the assailants and that his defense of alibi was false, then the consequences of committing murder in aggravating circumstances cannot be avoided.

The appellant and his accomplices upon assaulting the deceased unlawfully gained entry into Winnie’s house and proceeded to rob her.  I am of the view that it has not been shown that the trial court did not exercise its discretion properly in imposing the sentence in question.  Thus, the court a quo cannot be faulted for finding that the murder was committed in aggravating circumstances of robbery and unlawful entry into a dwelling house and thus deserving the death penalty.

DISPOSITION

In the circumstances, the court a quo did not err in its findings.  The appellant committed murder in aggravating circumstances and, in terms of the law, the sentence of death was within what the court a quo was permitted to impose in the exercise of its discretion.  Resultantly, the appeal has no merit and ought to be dismissed in its entirety.

It is accordingly ordered that:

“The appeal be is and hereby dismissed in its entirety.”

UCHENA JA		:	I agree

KUDYA JA		:	I agree

Gill, Godlonton & Gerrans, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners