REPORTABLE ZLR (38)

Judgment No. SC 33/06

Crim. Appeal No. 169/04

BRIAN RUSHAMBWA SANGO v THE STATE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & MALABA JA

HARARE, MAY 15 & 18 SEPTEMBER 2006

G Mupanga, for the appellant

R K Tokwe, for the respondent

CHEDA JA: The appellant was convicted on two counts of murder and sentenced to death by the High Court. He now appeals against both conviction and sentence.

The background to this case is as follows:

The deceased woman and her two year old child went missing from the farm where they resided at Adams Farm in the Rusape area.

About two months later one Judith Nyika came across two human skulls. One was of an adult, and the other was of a baby. The skulls were a few metres apart.

At this scene, she noticed a Zimbabwean national registration identity card and a CABS card belonging to Rosemary Matsika, a bag and some personal items.

A report was made to the Police. Police Detectives attended the scene and carried out investigations, as a result of which the appellant was arrested some six months later.

On 22 November 2002 the appellant was convicted of both counts of murder and was sentenced to death on each of the two counts.

In his notice of appeal the appellant submitted among other things that nobody witnessed to having seen him committing the crime and the court relied on the warned and cautioned statement that was not confirmed.

At the appeal it was also submitted on his behalf that not enough evidence was placed before the court a quo to secure a conviction, there were serious irregularities in the admission of indications and the warned and cautioned statements which must vitiate the whole trial, and that his right to a fair trial and to protection of the law in terms of the Constitution of Zimbabwe, enshrined in ss 11 and 18, were violated.

The respondent, while conceding the impropriety of admitting the indications statement in evidence without going into a trial within a trial, nevertheless submitted that there was sufficient evidence to convict the appellant.

I now turn to consider the evidence on which the appellant was convicted.

A number of witnesses gave evidence, which was neither disputed nor challenged by the appellant at the trial.

Taengwa Matsika said he was the father of the deceased Rosemary Matsika, the first deceased, and that the second deceased was Rosemary’s son. He learnt, sometime in April 2001, that the deceased and her son had gone missing. In May 2001 he was taken to Wakefield Resettlement area, to Madembu Village where he was shown the remains of two deceased persons. He saw some personal clothing items, a national identity card and a CABS card belonging to the first deceased. He saw also a Death Certificate of Michael Madziwa who was the first deceased’s late husband.

Maybe Chinoshava was the first deceased’s neighbour. She resided at Wakefield Resettlement.

On 31 March 2001 she was at her home at about 1630 hours when she saw the first with the second deceased fetching water from a nearby well. It was her last time to see them.

On 24 May 2001 she learnt of the discovery of the remains of human beings at Adams Farm.

She went to the scene and there identified the two deceased through their clothes and personal documents.

Judith Nyika is the one who discovered the remains on 20 May 2001 while she was looking for caterpillar worms. She saw a Zimbabwean national identity card belonging to the first deceased, a bag, a purse and some clothes of a female and a baby. She reported the matter.

The trial court was satisfied, and rightly so, that this evidence of the three witnesses’ laid to rest the issue of the identification of the two deceased persons.

The suggestion by the defence in its heads of argument, that Rosemary Matsika may have murdered some two deceased persons, left her property at the scene and disappeared is too fanciful to be believed. There would be no reason for Rosemary to murder someone else and a child then leave her own clothes, identification card, CABS card and her late husband’s death certificate at the scene, items which could betray her and which she would certainly need as long as she was alive. The evidence which links the appellant with the crime, though circumstantial, is as follows:

Wilson Mugodhi said the first deceased was his girlfriend. The appellant stayed with him at Adams Farm where both were employed. They shared the same house but different bedrooms.

He said he secured employment for the appellant and the relative of his girlfriend called Shelter who later became the appellant’s girlfriend. The deceased visited him regularly, and the appellant visited his girlfriend Shelter at Wakefield Farm where she used to reside with the deceased.

The appellant was present on 28 March when the first deceased asked for money and was given $1 000-00 by Mugodhi to visit Mutare.

The following Sunday morning one Artwell came looking for the appellant in order to collect his machete, which had been borrowed by the appellant the previous day, but the appellant had not spent the night at his home.

A quick look at the 2001 calendar shows that 28 March was a Wednesday, and Saturday was 31 March 2001. Since Artwell came on Sunday morning, for the machete borrowed the previous day, which was Saturday 31 March, this shows that on Saturday night when the appellant spent the night away from his residence he was in possession of the machete.

It is the same Saturday night that the appellant spent away from his residence.

When the appellant was asked if he visited Wakefield farm on the day he was given the machete he said “No, I went there the following morning”.

He was not being truthful because Chamburuka said he went to the appellant’s residence at 5 am and found that the appellant was not there.

Chamburuka also said the machete was borrowed on Saturday and he went to collect it on Sunday morning when he found the appellant at his girlfriend’s residence.

The appellant also said the machete was recovered from him at Adams farm. Again this was not true. The appellant was obviously avoiding the fact that he took the machete with him to Wakefield farm on the night of 31 March, the night of the murder of the two deceased persons.

In his evidence although he used to see Shelter when Rosemary was missing he did not even ask where Rosemary was.

The appellant took possession of the deceased’s plates and sold them. There was also a comb and mirror which belonged to the deceased and which Mugodhi positively identified.

According to Mugodhi’s evidence the appellant disappeared after the deceased’s plates were found in his room. The comb, mirror and other items were discovered later when he had disappeared. They were found in the appellant’s bag. The appellant said he knew the comb and mirror very well.

It is also clear from the evidence that the appellant left employment and disappeared at about the same time that the first deceased’s property was found in his room. The appellant also lied about how he left employment at Adam’s farm.

In his warned and cautioned statement which was admitted as evidence after a trial within a trial, the appellant confirms 31 March 2001 as the date when he went to Wakefield with the machete that he had borrowed from Artwell.

He confessed to being with the deceased that evening after 9 pm.

He detailed how he attacked the deceased, first with a stick, and later with the machete. His narration of what he did was so detailed that one could not expect the recorder of the statement to have known or made up such details if they had not been revealed by the appellant himself. See Webster Paradzayi & Anor v The State SC 47/87 and S v Gwaze 1978 RLR 13 (AD).

Since the deceased’s remains were by then old and reduced to bones, the police could not have known that the appellant had first struck the two deceased with a stick. Neither could they make up the detail that the appellant sat on a rock and smoked tobacco while the deceased were lying down.

The appellant argued that the police should have called Shelter or recorded a statement from her. The police obviously attempted to get Shelter’s evidence and that is why they said she was then married to somebody else and she said she was not interested in the case. The appellant could have advised his counsel or even requested the court to call Shelter.

The appellant, or his defence counsel, did not show any interest in the evidence of Shelter at the trial. It would not have been proper to force the appellant to call a defence witness if he had not expressed the desire to call her, especially if she had indicated to the police that she was not interested. It would have been irregular for the police to force Shelter to come and give evidence if the appellant had not called her.

The appellant also confessed to being in possession of property belonging to the deceased, the plates, and later sold them, a fact that was corroborated by the witness who purchased the deceased’s plates.

As for the evidence accompanying the indications, the respondent correctly conceded that such evidence should not have been relied on as it was not properly obtained.

However, even without that evidence, there was enough evidence on the record to justify the conviction.

When Artwell Chamburuka went to recover his machete he found the appellant at his girlfriend’s house at Wakefield farm, the same farm where the deceased lived. The appellant had the machete in a bag. It is obvious from this evidence that the appellant took the machete with him to Wakefield farm and was in possession of it there overnight.

The post-mortem report confirms that a bladed metallic surface with a cutting edge was used on the deceased’s skull.

All the evidence, although circumstantial, points to the appellant as being responsible for the murder. No other reasonable inference can be drawn which would leave out the appellant.

I am satisfied that the trial court, having heard the witnesses and the appellant, came to the correct conclusion that the appellant is guilty of the murder of both deceased persons.

I do not find any merit in the submission that the appellant’s right to the protection of the law, enshrined in ss 11 and 18 of the Constitution of Zimbabwe, was violated in view of what I said above concerning the evidence of Shelter. The appellant was afforded a full trial and was legally represented. He was not denied any right to call defence witnesses.

No submissions were made for the appellant against sentence.

The evidence led established that this was a most brutal murder of the two innocent deceased by the appellant after he had raped the first deceased.

The death sentence was appropriate in the circumstances.

The appeal is accordingly dismissed in its entirety.

CHIDYAUSIKU CJ: I agree.

MALABA JA: I agree.

Pro deo