Criminal Appeal No SC 228/12 / 1
ABRAHAM MBOVORA
v
THE STATE
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, HLATSHWAYO JA MAVANGIRA AJA
BULAWAYO, JULY 28, & NOVEMBER 17, 2014
C Van Heerden, for the appellant
T Hove, for the respondent
MAVANGIRA AJA:On 5 October 2006 the High Court found the appellant guilty of the murder of Johannes MapfumoMajoniwith actual intent to kill him. The court a quo found no extenuating circumstances. It therefore sentenced the appellant to death. This is an automatic appeal against both conviction and sentence.
It was the State case that the appellant shot and killed the deceased. There was no direct evidence against the appellant, the State relying on circumstantial evidence. The undisputed facts are that in the afternoon of 14 April 2005 a man armed with a firearm arrived at ChinyuniBusiness Centre in Chirumhanzu. His head was covered with a black woollen hat which covered the forehead down to the eyebrows. A scarf covered his face from the nose down to the mouth. All that could be seen were the armed man’s eyes. He force marched two men at gun point into a room at the premises (hereafter referred to as the first room). He ordered the two men as well as a lady who was in that room to lie on the floor. He demanded money and was told that it was in the next room. He left the room closing the door behind him and stormed into the next room (hereafter referred to as the second room) where he fired a shot and demanded money. As one of the frightened occupants was putting the money in a plastic bag as ordered, one of the men who had been force marched into and was left lying on the floor in the first room bolted out of the room and went outside. The escaped man proceeded to close the gate or screen to the premises with a view to preventing the armed man from escaping. As he was doing so the armed man also ran out from the second room leaving the money behind. The armed man went towards the gate and shot the escapee who is the now deceased, as he was closing the gate. The armed man left the scene. It is the State case that the armed man was in fact the appellant.
The appellant denied having shot and killed the deceased maintaining that he was not in Zimbabwe at the time of the commission of the offence. He claimed that he had been in South Africa since 2001 until his return to Zimbabwe on 18 April 2005, some 4 days after the commission of the offence. He further claimed that the CZ pistol found in his possession at the time of his arrest was not and could not have been the murder weapon as he had acquired it in South Africa and had only brought it to Zimbabwe on his return on 18 April 2005. The appellant also denied having made any indications to the Police at the scene of the offence. It was contended on his behalf that the State had failed to prove the allegation against the appellant beyond reasonable doubt. It was further contended that the trial court ought to have acquitted him as the evidence adduced by the State failed to place the appellant at the specific area at which, and within the specific time that, the offence was committed.
The respondent on the other hand contended that the appellant’s conviction was proper in the light of the evidence led. It was contended that the circumstantial evidence relied on by the trial court passed the test set out in R v Blom 1939 AD 188 thereby justifying the conviction despite the absence of direct evidence of the appellant committing the offence.
None of the State witnesses who witnessed the murder saw the assailant’s face or identified him, as his face was covered by a woollen hat and red scarf that he was wearing at the time of the shooting. John TaziveyiMabhundu, one of the State witnesses said that as the events leading to the fatal shooting were unfolding he was not able to identify the armed man. He was however present when the appellant was making indications to the Police. Although due to the distance separating them he could not hear what the appellant was saying as he made the indications, the indications made by the appellant tallied with the witness’ own observations of what happened on 14 April 2005 and thus also tallied with his own indications which he subsequently made regarding the events of the fateful day. He observed that the appellant was sufficiently relaxed as he made his indications such that he would chat with local people who had gathered to witness the occurrence. The police reprimanded him for his conduct. The appellant confirmed this reprimand. The witness stated that the appellant made indications before State witnesses, himself included, also made indications at the scene as to the pertinent events leading to the deceased’s fatal shooting. After the holding of a trial within a trial triggered by the appellant’s denial that he had made any indications, the trial court correctly rejected his denial and ruled the recorded indications admissible in evidence.
At the time of his arrest the appellant was found in possession of a CZ pistol. In both his confirmed warned and cautioned statement and his defence outline, the appellant did not make any reference to the pistol. In his testimony before the trial court he did not however dispute that he was in possession of a CZ pistol at the time of his arrest but he denied having used it to commit the offence. He said that he had brought the pistol from South Africa where he had been resident from 2001 until his return to Zimbabwe on 18 April 2005. He indicated that he intended to have the pistol registered in Zimbabwe.
In his confirmed warned and cautioned statement, after being advised that inquiries were being made in connection with offences allegedly committed by him on 14 April 2005 at Chinyuni Business Centre in Chirumanzi, the appellant said among other things that during the said period he had visited “this place”. In his defence outline the appellant stated that he only came back to Zimbabwe on 18 April 2005. In the appellant’s Notice of Appeal it is stated:
“…non (none?) of the evidence established that the appellant himself was in the specific area of the offence when it occurred. The offence could have been committed by any other person who had access to the accused’s CZ pistol.”
The suggested possibility of the appellant’s pistol having been accessed and used by any other person to commit the offence tends to indicate a belated acceptance by the appellant that he was not in South Africa but was in Zimbabwe when the offence was committed for it was him who brought the pistol into Zimbabwe. That also appears to signify a departure from the same stance in his Defence Outline wherein he indicates that at the time of the commission of the offence he was in South Africa. The statement in the warned and cautioned statement appears to place the appellant in the general vicinity of the crime at the pertinent time. His reneging on this in his testimony when he said that what he meant by “this place” was that he was in the Mashava area also tends to show that the appellant abandoned his earlier claim that he was in South Africa. The trial court rightly observed a determination on the part of the appellant to mislead the court.
The appellant’s reneging on this said aspect of his warned and cautioned statement appears to also confirm an acceptance of the ballistic evidence that it was his weapon that fatally shot the deceased as that is what the ballistic evidence established.
Ballistics evidence adduced before trial court is pertinent. The ballistics report and viva voce evidence put paid to the appellant’s contention that the pistol recovered from his possession could not be used without a magazine and that the 7.65mm fired cartridges recovered from the scene of the crime could not have been fired from that pistol as it uses 2mm cartridges. The ballistics examination established that the pistol was functional and that test cases fired from it matched the two fired cartridges that were recovered from the scene. The firearms expert who testified further observed that the pistol had an inscription on it stipulating the ammunition that can be used in it as 7.65mm.He also testified that the recovered pistol, contrary to the appellant’s contention that it cannot function without a magazine, can in fact function with or without a magazine and he demonstrated how. The ballistics evidence was not materially challenged. By the nature of the examination and tests that were conducted, the resultant report and the oral evidence adduced, the ballistics evidence was unassailable.
The circumstantial evidence adduced before the trial court therefore established the following facts. It established that the CZ pistol that the appellant was in possession of at the time of his arrest was the firearm from which the fatal shot that struck and killed the deceased was fired. It established that it was the appellant who brought the CZ pistol into Zimbabwe on his return from South Africa where he had obtained it. The evidence also established that the appellant freely made indications at the scene of the murder and such indications were consistent with the events of the fateful day leading to the fatalshooting of the deceased. Furthermore, that State witnesses who had witnessed the events of 14 April 2005 and thereafter also witnessed the making of indications by the appellant on 22 April 2005 recognised the appellant as the perpetrator of the offence of 14 April from his voice and also from his stature.
On an application of the principles enunciated in R v Blom1939 AD 188 the court a quo’s finding that the State proved the case against the appellant beyond reasonable doubt is justified. The two cardinal rules of logic enunciated therein are the following. Firstly, the inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. Secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. In casu the inference drawn by the trial court is consistent with all the proved facts. Furthermore, the proved facts are such that they exclude every reasonable inference save the one made by the court a quo. The fact of the appellant’s pistol being the murder weapon coupled with the fact that no one other than the appellant could have had access to it as at 14 April 2005 further strengthen the cogency of the exclusion of every reasonable inference save the one made by the trial court. The formulation in Munyanga v The State HH79/13 is that the court must consider all the facts together as a whole and ask whether it can be concluded from those facts that the accused is guilty of the offence charged if such a conclusion does not reasonably arise, then the State’s circumstantial case fails because there is no proof of guilt beyond reasonable doubt. Even on this formulation, the verdict by the court a quo cannot be faulted on the proved facts.
On the evidence placed before it the trial court thereforecame to the correct conclusion. The conviction is proper.
Mr Van Heerdenfor the appellant had no meaningful submissions to make against sentence. This was a murder committedduring the course of a robbery. The court a quo correctly took this into account in determining whether or not there were extenuating circumstances. In S v Woods & Ors1993 (2) ZLR 258 (S) at 284 A-B the following was stated:
“In deciding whether or not extenuating circumstances exist which allow of the imposition of a sentence other than death, the trial court exercises what is essentially a moral judgment. On appeal this Court cannot substitute its own view. It may only interfere if persuaded that the conclusion of the trial court could not reasonably have been reached; or where that court had regard to wrong factors, or had mistakenly excluded factors proper to be taken into account, or had, in some other way, erred in principle,”
The appellant who was in the process of committing an armed robbery abandoned the robbery and went and shot the deceased who was trying to lock the gate to the premises in order to prevent him from escaping. He shot the deceased in the abdomen at close range. The appellant stated that he was conversant with firearms having been an active member of the Zimbabwe National Army from 1997 to 2001.
In S v Sibanda1992 (2) ZLR 438 (S) at 443 F-H it was stated:
“Warnings have frequently been given that, in the absence of weighty extenuating circumstances, a murder committed in the course of a robbery will attract the death penalty. This is because, as observed in S v NdlovuS-34-85 (unreported):
‘… it is the duty of the courts to protect members of the public against this type of offence which has become disturbingly prevalent. People must feel that it is possible for them to enjoy the sanctity of their homes, to attend at their business premises, or to go abroad, without being subjected to unlawful interference and attack.’”
See also CloudiusMutawov The State SC 37/2014 where at p6 of the cyclostyled judgment it was stated that there would have to be very strong mitigatory factors for a person who commits murder in the course of a robbery to escape the death penalty. In casuno mitigatory factors avail the appellant. The trial court’s finding that there were no extenuating circumstances in this case is faultless on the facts proved. No justification for interference by this Court with the trial court’s findings and with its exercise of its discretion has been established. The trial court did not err.
In the circumstances the appeal against conviction and sentence is dismissed.
ZIYAMBI JA:I agree
HLATSHWAYOJA: I agree
Lazarus Sarif, appellant’s legal practitioners
The National Prosecuting Authority, respondent’s legal practitioners