REPORTABLE Z.L.R. (14)

Judgment No S.C. 21\2002

Crim. Appeal No 258\2001

EDWARD CHINDUNGA v THE STATE

SUPREME COURT OF ZIMBABWE

EBRAHIM JA, SANDURA JA & ZIYAMBI JA

HARARE FEBRUARY 18 & APRIL 26, 2002

P.C. Lloyd, for the appellant

M. Nemadire, for the respondent

SANDURA JA: The appellant was charged with murder, the allegation being that on 25 October 1996 he unlawfully and maliciously killed a man called Petro Moyo near the Epoch Mine compound in the Filabusi area of Matabeleland. He pleaded not guilty but was found guilty and sentenced to death after the High Court found that there were no extenuating circumstances. He now appeals against both conviction and sentence.

At the trial the State called five witnesses and produced a number of exhibits. The witnesses were Hardlife Zhou (“Hardlife”), Bruce Mlauzi (“Bruce”), Constable Mangombe (“the Constable”), Fanuel Nyoni (“Fanuel”), and Trevor Ndlovu (“Trevor”).

The exhibits included a post-mortem report, an affidavit sworn to by a Forensic Scientist, three logs and ten notebooks.

The evidence given by Hardlife and Bruce was as follows. They knew the appellant because they once lived in the same compound with him at Fred Mine. On 25 October 1996, they arrived at Epoch Mine at about 4 p.m.

Shortly after sunset, they went to the beerhall in the compound where they bought some opaque beer which they started drinking. They were seated on a bench and were watching television. The appellant and the deceased later arrived and stood at a spot about ten paces behind them. They appeared to be having a friendly conversation. Hardlife saw them but Bruce did not. There were many people in the beerhall.

The deceased did not drink beer because he was a member of the Zionist Church which did not permit its members to drink alcohol. The appellant did not drink any beer at that stage.

However, after a while the appellant and the deceased left the beerhall. As they left, they seemed to be speaking to each other in a friendly manner. When they were just outside the beerhall gate, Hardlife drew Bruce's attention to the fact that they had left. Bruce looked in the direction of the gate and saw two people just outside the gate but did not recognise them.

About five minutes later, the appellant returned to the beerhall and joined Hardlife and Bruce who were still seated on the bench. He sat between them and asked them why they were drinking opaque beer. He then gave some money to Bruce and asked him to go and buy three quarts of clear beer. As quarts were not available, he bought three pints instead. He used the change to buy some meat which they roasted and ate as they drank beer. They were in the beerhall drinking beer until about 10 p.m. when the beerhall closed. The beer which they drank that night had been bought by the appellant. However, they did not say how much beer they consumed because that question was not put to either of them.

Both Hardlife and Bruce said that when the appellant joined them on the bench he was wearing a white shirt which was not blood-stained. But both men could not recall the colour of the pair of trousers which the appellant was wearing at the time. In addition, Hardlife could not recall what shoes the appellant was wearing, but Bruce recalled that the appellant was wearing slippers.

However, both men said that there was nothing unusual or peculiar about the appellant’s clothes or behaviour when he returned to the beerhall. They added that there was no indication whatsoever that anything had happened outside the beerhall before he returned.

It was their evidence that after leaving the beerhall they went to Ndlovu’s Shebeen for gambling, whilst the appellant went to Mariba’s Shebeen for the same reason. Thereafter, they did not see the appellant again.

Trevor’s evidence was as follows. In October 1996 he lived at Fletcher Farm in Filabusi. At about 1 p.m. on 25 October 1996 he and a man called Dingani left the farm for Epoch Mine with the intention of gambling. When they arrived at Epoch Mine, they went to the beerhall in the compound and found no-one gambling.

They, therefore, left the beerhall and went to a shebeen where they found the appellant and others gambling. Shortly thereafter, the appellant sold a jacket to one of the gamblers. A while later, the appellant left the shebeen and returned to the beerhall. Trevor and his colleague later returned to the beerhall and found the appellant drinking opaque beer. A short while later, Trevor left the beerhall and went to the local market where he met the deceased but did not speak to him. He then returned to the beerhall.

Sometime after 5 p.m. the appellant left the beerhall but returned after 6 p.m. He was wearing a white shirt with a torn pocket. There was a blood stain below the pocket. He was then drinking clear beer and had a lot of money. He pulled a wad of $50 notes out of his pocket. The wad of notes was about five to ten centimetres thick. When this happened Trevor was about five paces away from the appellant.

Shortly thereafter, Trevor and his colleague met the appellant at the shebeen where he was again gambling. The appellant had an altercation with one of the gamblers called Liton. He snatched some money from Liton. Liton then pulled out an okapi knife and stabbed the appellant’s hand once before running away, and was pursued by the appellant. Trevor did not see the appellant again that night.

Fanuel’s evidence was as follows. The appellant is his brother-in-law because his wife and the appellant’s wife are sisters. On 25 October 1996, he met the appellant at Filabusi Garage. The appellant had two bags in his possession and was drinking opaque beer in the company of several local residents.

At about 5 p.m. the appellant left his bags at Fanuel’s house, which was near the garage, and went to Epoch Mine. He later returned to Fanuel’s house at midnight and spent the rest of the night there. He showed Fanuel an injury on his finger and indicated that he had been stabbed at the shebeen where he had been gambling.

On the following morning, Fanuel, at the request of the appellant, accompanied the appellant to a hospital in Bulawayo where the appellant received some treatment for his injury. After the treatment, the appellant spent about $700 buying clothes for himself, his wife and his children.

Thereafter, both men took a bus to Mbalabala but dropped off at Esigodini where each of them drank eight pints of clear beer before proceeding to Mbalabala where they consumed more beer and spent the night.

On the following morning, they took a bus to Filabusi Garage. However, just before they reached their destination, the appellant got off the bus and went to Filabusi Hospital for a fresh dressing of his wound. Fanuel proceeded to Filabusi Garage where he found the police looking for the appellant. He took them to the hospital where they arrested the appellant and took him to the police station.

At the police station Fanuel saw the white shirt which the appellant had been wearing on 25 October 1996. It was blood-stained and was in one of the appellant’s bags. What had happened was that before going to Bulawayo for treatment on 26 October 1996, the appellant had changed the clothes he had been wearing on the previous day and had placed them in one of the bags.

It was Fanuel’s evidence that his bus fare to and from Bulawayo, i.e. $80, had been paid by the appellant. It was also his evidence that all the beer he consumed on 26 October 1996 had been bought by the appellant. He added that the appellant had a lot of money which he said he had won when he gambled at the shebeen on 25 October 1996.

I now come to the Constable’s evidence. It was as follows. In 1996 he was stationed at Filabusi Police Station. He knew both the appellant and the deceased as residents of Filabusi. In addition, he knew the deceased as a storekeeper at Filabusi shopping centre.

On 27 October 1996, he received a report to the effect that the deceased’s body had been found in the bush near Epoch Mine. He drove to the scene and found the body lying on the ground. Upon examining it, he observed a wound on the right side of the head just above the right eye. Near the body were three blood-stained logs, ten notebooks and one empty bottle of Fanta, a well known soft drink. From the entries in the notebooks, he concluded that the deceased had collected some money from various people at Epoch Mine on 25 October 1996. However, he did not find any money at the scene of the murder. He collected the body, the logs and the notebooks and returned to the police station.

It was his evidence that the distance between the beerhall at Epoch Mine and the scene where the deceased’s body was found was about one-and-a-half kilometres, and that it would take about ten to fifteen minutes to walk that distance.

Subsequently, on 28 October 1996, the Constable saw the appellant in the police cells. The appellant was wearing a white shirt, a pair of trousers and a pair of slippers. The constable observed some blood on the slippers, but could not say whether or not the shirt was blood-stained. He also observed a stab wound in one of the appellant’s palms.

He later recorded a warned and cautioned statement from the appellant. In that statement the appellant denied the charge. Statements were also recorded from some of the persons whose names were mentioned by the appellant in his statement.

The post-mortem report indicates that the cause of death was “skull fracture and brain laceration”.

In addition to the witnesses whose evidence I have just summarised, the State relied upon the affidavit sworn to by Ms Vongai Chinherende, a Forensic Scientist. The relevant part of that affidavit reads as follows:-

“1. Blood detected on the shirt, pair of trousers and pair of slippers belonging to the accused originated from an ABO blood group A …

2.–4 …

5. The deceased was found to be ABO blood group A.

5. The accused was found to be ABO blood group O.

5. This means that blood detected on the shirt, pair of trousers and pair of slippers belonging to the accused could have originated from the deceased.”

The appellant’s own evidence was as follows. In 1996 he lived in Bulawayo. On 25 October 1996 he decided to go the Mbalabala to collect the sum of $140 from a man called Phiri who owed him that sum.

As he did not have enough money for the journey, he approached a Mr Moyo, the proprietor of Filabusi Garage who lived in Bulawayo. Moyo gave him $12,00. He then proceeded to the bus terminus near Max Garage, but before he got there he met an old friend, Ozwell Ndebele, who gave him $100. He hoped to raise more money after selling some of the clothes he had in a bag which he was carrying.

He then took a bus to Mbalabala where he saw Phiri who paid him $60 and promised to pay the balance after collecting the money which the workers at Epoch Mine owed him. Phiri indicated that as the workers at the mine were receiving their wages on that day, he would pay the balance to the appellant on that day.

Whilst the appellant was at Mbalabala, he sold one pair of trousers for $70 but was paid only $30, after the purchaser promised to pay the balance at the end of the month.

He then proceeded to Filabusi Garage where he bought some opaque beer which he shared with some friends whom he had not seen for sometime. Whilst he was at the garage, he sold a jacket for $60 but was paid only $30 after the purchaser promised to pay the balance at the end of the month. He also sold two shirts for $30.

At about 4.30 p.m., he left Filabusi Garage for Epoch Mine to meet Phiri who had earlier promised to pay him the sum of $80 at the mine. He left his two bags with his brother-in-law, Fanuel, whose evidence I have already summarised.

When he arrived at the mine he could not find Phiri. He then went to a shebeen where people usually gambled but did not find him. He sold a jacket to one of the gamblers for $50 but was only paid $20 and was promised that the balance would be paid later.

Shortly thereafter, he saw Phiri driving his motor vehicle. When he stopped him and spoke to him Phiri said that he could not pay the sum due to the appellant, but gave him $20 and advised him to go and drink some beer at the beerhall.

When the appellant entered the beerhall, he met Hardlife and Bruce whom he had known for a long time. He found them drinking opaque beer and jokingly said to them “Is money hard to come by these days? Why are you drinking opaque beer?” In reply one of them jokingly said “The rich man is here.” That was shortly after sunset.

He then gave some money to Bruce and asked him to go and buy some clear beer and meat, as Hardlife and Bruce stated in their evidence. Thereafter, they drank beer until the beerhall closed at 10 p.m.

The appellant denied seeing the deceased or going to the beerhall with him on the day in question.

After leaving the beerhall he went to Mariba’s Shebeen together with Hardlife and Bruce intending to participate in gambling. He disputed the evidence given by Hardlife and Bruce which was that they went to Ndlovu’s Shebeen whilst the appellant went to Mariba’s Shebeen.

Nevertheless, it was the appellant’s evidence that when he gambled at the shebeen he won a lot of money and lost only two bets. He indicated that the gambling involved large sums. However, he added that as the gambling progressed, he discovered that a gambler called Liton had cheated him. Accordingly, he snatched the money which Liton was holding and placed it in his shirt pocket. Liton then tried to retrieve the money but the appellant punched him with a clenched fist. That blow landed on Liton’s mouth, causing him to bleed from the mouth. It also felled him.

However, when Liton got up, he pulled out a knife and aimed a blow at the appellant who tried to block it. As a result, one of the appellant’s fingers was injured and Liton ran away.

The appellant then decided to return to Filabusi Garage. He was bleeding profusely, and as a result, his shirt, trousers and slippers were blood-stained.

When he arrived at Fanuel’s house, where he spent the rest of the night, he counted his money and found out that he had more than $1 500.00. This included the money which he snatched from Liton.

The rest of the appellant’s evidence concerning what he did on 26 October up to the time he was arrested on 27 October 1996 is the same as Fanuel’s evidence which I have already summarised.

I have set out the evidence of each witness in some detail because I think that it is important to know what each witness said before determining whether the appellant was properly convicted.

In his judgment the learned judge in the court a quo said the following:-

“What is it that links you with this murder? There is no doubt that you were at Epoch Mine Beer-garden on the evening of the day when this happened. There is no doubt that the deceased also got there. We have evidence from witnesses who saw him. We have evidence that he collected money from some people there … You yourself admit being at this beer-garden although you dispute that you saw him. We have evidence showing that when you set off from Bulawayo you had financial problems, you needed money. You even tried to collect debts from people who owed you money as you went on your way. Even when you got there you were drinking opaque beer. You even went gambling in order to get money … The evidence then shows that after you had been seen by witnesses leaving the beer-garden with the deceased, subsequent to that you were seen with a lot of money …

There is also evidence of the forensic scientist which is to the effect that the blood-stain on your shirt matched the blood grouping of the deceased. There has been no satisfactory explanation other than your suggestion that the blood could have come from yourself being stabbed by the other person at the gambling school … There is no suggestion that some other person could have bled whose blood group matched that of the deceased …”

The learned judge then found the appellant guilty of murder with actual intent.

In convicting the appellant the trial court relied upon certain “facts” which it said had been proved.

The first “fact” allegedly proved was that witnesses had seen the appellant with the deceased at the beerhall, and the second “fact” was that the appellant was later seen by witnesses leaving the beerhall with the deceased. I shall consider both findings together.

In my view, both findings are incorrect, having regard to the evidence. In the first place, it was only Hardlife who said that he saw the appellant with the deceased in the beerhall and that he later saw them leaving the beerhall together. That evidence was not corroborated by Bruce who, like Hardlife, knew both the appellant and the deceased very well, and was sitting on the bench that Hardlife was sitting on whilst watching television.

In addition, Trevor, who was at the beerhall at the same time, did not say that he saw the appellant in the company of the deceased, nor did he suggest that the appellant left the beerhall in the company of the deceased. Instead, he said that he saw the deceased at the market and that when he himself returned to the beerhall, he saw the appellant leaving the beerhall. Trevor’s version was, therefore, that when the appellant left the beerhall he was alone.

There was, therefore, a contradiction between Hardlife’s evidence and Trevor’s evidence, which the learned judge in the court a quo should have dealt with in his judgment. Regrettably, the learned judge did not comment on the contradiction, nor did he comment on the credibility of the two witnesses. He, therefore, did not explain why he believed Hardlife, in preference to Trevor, with regard to whether the deceased was with the appellant when he left the beerhall.

In my view, that was a grave error on a crucial matter. I say so because one of the reasons for convicting the appellant was the acceptance by the learned judge that when the deceased left the beerhall he was in the company of the appellant.

I am, therefore, satisfied that the evidence on which the learned judge relied for the conclusions that the appellant was in the beerhall with the deceased and that the two men later left the beerhall together is unreliable.

I now wish to consider the third and fourth “facts” relied upon by the learned judge. The third “fact” was that after the appellant returned to the beerhall he was seen with a lot of money, and the fourth “fact” was that at that stage the appellant’s shirt had a blood stain. These “facts” were conclusions drawn from Trevor’s evidence.

It was Trevor’s evidence that when he was about five paces away from the appellant, the appellant pulled out of a pocket of his trousers a wad of $50 notes which was five to ten centimetres thick. He also said that he saw a blood stain below the appellant’s shirt pocket when he was about five paces away from the appellant.

It seems to me unlikely that Trevor would have been able to tell, from a distance of about five paces, that the wad of notes produced by the appellant consisted of $50 notes and was five to ten centimetres thick, and that the appellant’s shirt had a blood stain. At the trial, the appellant denied that he had produced a wad of $50 notes in the beerhall. He said that it would have been very foolish to do so, bearing in mind that there were many people in the beerhall at the time.

With regard to the blood stain, the appellant denied that when he went to the beerhall his shirt was blood-stained. He insisted that the shirt be produced to enable the trial court to determine whether, from a distance of five paces, a blood stain could be seen on the shirt. Regrettably, the prosecutor was unable to produce the shirt and failed to give any reasonable explanation as to its whereabouts.

In addition, it is pertinent to note that there was a contradiction between Trevor’s evidence and the evidence given by Hardlife and Bruce on the condition of the appellant’s shirt when the appellant entered the beerhall.

According to Hardlife and Bruce, when the appellant returned to the beerhall and joined them on the bench where they were seated, they did not notice any blood stain or anything unusual about his clothes. On the contrary, Trevor said that when he saw the appellant in the beerhall from about five paces away, at about the same time, the appellant’s shirt was blood-stained.

The learned judge should have dealt with this contradiction in his judgment. Regrettably he did not. He did not mention or comment on the contradiction, nor did he comment on the credibility of the three witnesses, that is to say, Hardlife, Bruce and Trevor. In the circumstances, the learned judge did not explain why he disbelieved Hardlife and Bruce, who said there was nothing unusual about the appellant’s clothes, and believed Trevor, who said the appellant’s shirt was blood-stained.

Once again, that was a grave error on a crucial matter. That is so because one of the reasons for convicting the appellant was the finding by the trial court that when the appellant returned to the beerhall his shirt was blood-stained.

There was another contradiction which the learned judge should have dealt with in his judgment. According to Hardlife and Bruce, when the appellant left the beerhall he returned after about five minutes. But according to Trevor it took the appellant about an hour to return to the beerhall.

It seems to me that the learned judge accepted Trevor’s evidence because if he had accepted Hardlife’s and Bruce’s evidence he would have acquitted the appellant. I say so because the Constable said that the deceased’s body was found at a spot about one-and-a-half kilometres away from the beerhall. It would not have been possible for the appellant to walk that distance, kill the deceased who was sober, and return to the beerhall within five minutes. In fact, it was the Constable’s evidence that it would take ten to fifteen minutes to walk a distance of one-and-a-half- kilometres.

In the circumstances, assuming that the learned judge accepted Trevor’s evidence and rejected the evidence given by Hardlife and Bruce, that the appellant returned after about five minutes, he should have given his reasons for that decision. Regrettably he did not.

In my view, that was a grave error on a crucial matter. The time it took the appellant to return to the beerhall was crucial in determining whether or not the appellant was the murderer.

Whilst it is true that the appellant bought some beer and meat which he, Hardlife and Bruce consumed in the beerhall until it closed at 10 p.m., the appellant’s explanation was that bearing in mind the $100 given to him by Ozwell, the $80 he got from Phiri and the money he raised by selling some of the clothes he had for sale on that day, he had enough money for that purpose. That evidence was not seriously challenged.

It is also true that on 26 October 1996 the appellant spent about $700 when he bought new clothes for himself, his wife and his children. He also spent a lot of money buying some beer for himself and his brother-in-law, Fanuel. When asked where he got that money from he said he had gambled and won a lot of money on 25 October 1996. He went on to say that when he returned to Fanuel’s house at about midnight he counted the money he had won and realised that he had more than $1 500. That sum, of course, included the money he snatched from Liton during the gambling session at Mariba’s Shebeen.

In my view, that explanation is not unreasonable and cannot be rejected out of hand.

I now come to another “fact” relied upon by the trial court in convicting the appellant, that is to say, the finding that the blood found on the appellant’s clothes belonged to the deceased’s blood group. That finding was based on the affidavit sworn to by Ms Vongai Chinherende, the Forensic Scientist. In that affidavit she stated that the blood found on the appellant’s clothes and slippers belonged to the deceased’s blood group. She did not say that on the same clothes she also found the appellant’s blood. And yet it was the appellant’s evidence that when Liton stabbed his finger he bled profusely and that, as a result, his shirt, trousers and slippers were blood-stained. That evidence was not seriously challenged.

In any event, it was common cause that on 26 October 1996 the appellant went to a Bulawayo hospital because his injury required medical attention. It could hardly be suggested that such an injury did not cause serious bleeding, nor could it be suggested that the appellant’s clothes and slippers were not blood-stained as a result of that bleeding.

That being so, one wonders why the Forensic Scientist did not find some of the appellant’s blood on the appellant’s clothes and slippers. In my view, that fact alone renders the whole examination by the Forensic Scientist unreliable.

In any event, it was incorrect for the learned judge to say “there is no suggestion that some other person could have bled whose blood group matched that of the deceased.” I say so because it was the appellant’s evidence, as well as Trevor’s, that during the evening of 25 October 1996, the appellant fought with Liton at a gambling session, and punched him in the mouth, thereby causing him to bleed from the mouth. In the circumstances, the possibility that the appellant’s clothes had some of Liton’s blood and that that blood belonged to the deceased’s blood group could not be ruled out.

Furthermore, there was no evidence on how the appellant’s clothes and slippers, the appellant’s blood sample and the deceased’s blood sample were conveyed to the Forensic Science Laboratory.

As already stated, in his warned and cautioned statement the appellant denied the charge. The Constable who recorded that statement said that he also recorded statements from some of the persons whose names were mentioned by the appellant in his statement. In my view, the fact that the prosecutor did not call most of those persons as witnesses, strongly suggests that their statements confirmed what the appellant said about them in his statement.

One other matter which I should deal with concerns the three logs found at the scene of the murder. The first log was 37 centimetres long, had a circumference of 15.5 centimetres and weighed 300 grams. The second log was 37 centimetres long and weighed 325 grams. Its circumference was not given, but presumably it was the same as the circumference of the first log. The third log was 36 centimetres long and weighed 260 grams. Its circumference was not given. All the three logs were blood-stained.

At the commencement of the trial, the prosecutor informed the court that in his view the three logs were initially one log which broke into three pieces. No reason was given for that opinion, and the trial proceeded on that basis.

In my view, that was wrong. Right from the beginning of the trial the assumption was made that the deceased was murdered by one person who assaulted him with a log which broke into three pieces. The court was, therefore, not alive to the possibility that the deceased was murdered by three people who, before committing the offence, broke the log into three pieces. After all, many people at the mine knew that the deceased had collected a lot of money on that day.

Finally, I wish to deal with the law very briefly. In my view, the appellant gave a reasonable explanation of what he did during the night in question. That explanation cannot be rejected out of hand.

As I said in S v Kuiper 2000 (1) ZLR 113 (S) at 118B-D:-

“The test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD 370. At 373, the learned judge said:-

‘… no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal …’

Similarly, in R v M 1946 AD 1023, DAVIS AJA said the following at 1027:

‘And, I repeat, the court does not have to believe the defence story; still less has it to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true…’”

Those comments apply to the present case with equal force.

Finally, as the learned judge convicted the appellant on the basis of circumstantial evidence, I wish to refer to the principles laid down in R v Blom 1939 AD 188. At 202-203 WATERMEYER JA referred to two cardinal rules of logic which governed the use of circumstantial evidence. He said the following:-

“In reasoning by inference there are two cardinal rules of logic which cannot be ignored:

1. The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) 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 the present case, and for the reasons already set out in this judgment, it is clear beyond doubt that the proved facts do not exclude other reasonable inferences.

In the circumstances, the appeal is allowed and the conviction and sentence are set aside.

EBRAHIM JA: I agree

ZIYAMBI JA: I agree

Gill, Godlonton & Gerrans, appellant's legal practitioners