REPORTABLE
(52)
Judgment
No S.C. 62\2002
Crim.
Appeal No 251\2002
LEARNMORE
JUDAH JONGWE v THE STATE
SUPREME
COURT OF ZIMBABWE
HARARE
AUGUST 5 & 8, 2002
J.
Samkange,
for the appellant
M.
Nemadire,
for the respondent
Before:
CHIDYAUSIKU CJ, in Chambers, in terms of section 121(2)(a) of the
Criminal Procedure and Evidence Act [Chapter 9:07]
The
appellant in this case is facing a charge of murder. He applied to
the High Court for admission to bail pending his trial.
MATIKA J,
dismissed the bail application. The reasons for judgment are
attached to the notice of appeal in this matter. The
appellant was
aggrieved by the dismissal of the bail application and now appeals to
a judge of this Court in terms of section 121(2)(a)
of the Criminal
Procedure and Evidence Act [Chapter 9:02]. It is apparent from the
reasons for judgment that bail was refused for
the following reasons:
that the appellant was
facing a very serious offence for which, upon conviction, he is
likely to be sentenced to a long term of
imprisonment and that the
evidence against the appellant was overwhelming. The above factors
were an inducement for the appellant
to abscond to avoid the trial;
that
the appellant was likely to commit suicide to avoid trial;
that
the appellant could be harmed by members of his deceased wifes
family;
that
the appellant might interfere with investigations.
The
grounds of appeal are set out in the notice of appeal which provides
as follows:-
1. On
the 24th
of July 2002, the Appellant made an application for bail pending
trial. The case was initially set down for hearing on the 25th
of July 2002. It was then postponed at the request of the state
which wanted to submit opposing papers. The matter was then
postponed
to the 26th
of
July 2002 for hearing before Mr Justice Matika. After hearing
arguments by counsel, the Court refused bail on the following
grounds:-
That
the Appellant is facing a serious charge;
That
the Appellant is likely to commit suicide;
That
the Appellant is likely to abscond;
That
the Appellant is likely to be harmed by members of his deceased
wifes family and, finally
That
the investigations are still pending.
After refusing bail, an
application for leave to appeal was made and the application was
granted.
The
Court found that the State had made general submissions. It
however felt that there was a resemblance of the truth in that
the
Applicant was not denying that he had stabbed his wife which
resulted in her passing away.
It
is respectfully submitted that the Court did not consider any of the
submissions made by the Appellant namely:
That
the Appellant in his favour surrendered himself to the Police;
That
it was a domestic dispute resulting in the unfortunate death of his
wife;
Although
he had traveled to Zhombe to his communal lands, upon hearing that
his wife had passed away, he immediately made arrangements
to return
and surrender himself to the Police;
That
he has co-operated with the Police in their investigations.
The
Honourable Judge erred in not placing sufficient weight on the fact
that the Appellant, well aware of the charges he was likely
to face,
surrendered himself to the Police and had stated under oath his
desire to stand trial and clear his name.
The
Honourable Judge erred in refusing the Appellant bail when there was
no evidence that he will abscond and not stand trial.
Appellant
is a young man with a 7 month old child. He has a fixed board and
he is a registered legal practitioner and member of
parliament.
That
he had shown that he had no desire to abscond but to stand trial and
that he wishes to be given an opportunity to be heard.
WHEREFORE,
Appellant prays that the judgment of the High Court to the extent
that it denied him bail be set aside and that he be
admitted on bail
on the terms set out in the draft order annexed hereto.
It is
a matter of regret that the notice of appeal does not set out the
grounds of appeal succinctly and clearly as is required by
the Rules.
Although bail was refused for a number of reasons the notice of
appeal challenges only one ground, namely, the learned
judges
conclusion that the appellant is likely to abscond if granted bail
and his reasons for so concluding. The confusion is
compounded by
counsel for the appellants written and oral submissions attacking
the other grounds for refusing bail which have
not been appealed
against in terms of the above notice of appeal. Be that as it may,
in my view this matter can be disposed of
on the basis, the main
ground for the refusal of admission to bail and in respect of which
an appeal has been noted, namely, that
the appellant is likely to
abscond if granted bail.
Thus, the
critical issue that falls for determination in this appeal is whether
the learned judge in the court a
quo
erred in concluding that the appellant was likely to abscond if
granted bail.
The
facts of this case are briefly as follows:
The
appellant is aged about 28 years old. He is a legal practitioner
and a Member of Parliament for the constituency of Kuwadzana.
Although the appellant and the deceased have only been married for a
year it seems like their marriage was not a happy one. The
marriage
appears to have been rocked by domestic violence and allegations and
counter-allegations of infidelity culminating in the
tragic death of
the deceased, the appellants wife. She too, was a lawyer, having
recently graduated from the Law School.
Most
of the facts of this case are common cause. In particular, there is
no dispute that the deceased died as a result of the stab
wounds
inflicted upon her by the appellant. The only dispute of facts
relates to what transpired when the appellant visited or
returned to
the offices of Muskwe and Associates on the day that the appellant
stabbed the deceased. The appellants version
of what happened on
that occasion is set out in his warned and cautioned statement to the
police which reads, in part, as follows:-
Question:
Do you understand the nature of the allegations? Yes.
ACCUSED PERSON REPLY IN
ENGLISH VERSION
I deny the
charge of Murder. What happened is that on Friday the 19th
of July we were walking in town with my wife. Immediately after 2
pm she said that she wanted to see her friend, one Jacqualine
who
works for a law firm called Muskwe and Associates. I left her at
the firm and went to my office. Later on after about 30
to 40
minutes, I went to Muskwe and Associates and asked Jacqualine where
my wife was. Jacqualine told me that she was in consultation
with
Donald MASHINGAIDZE a lawyer in the next office. I opened
MASHINGAIDZEs door and saw the two making love on top of a table.
I could just not believe it. At about 3.30 pm I then asked my wife
who was sitting in the lounge eating oranges what it is that
she was
doing with MASHINGAIDZE. She answered as follows: What you saw
is correct. In fact he is a better man. I long told
you that our
marriage is not working. At this stage, I got extremely provoked
and took a knife which was on a coffee table and
stabbed her.
Signed LEARNMORE JONGWE.
This version
of events by the appellant is disputed by the State. The State
contends that when the appellant called at the offices
of Muskwe and
Associates the deceased was not in Mr Mashingaidzes office as
alleged by the appellant but in Ms Makonis office.
According to
the summary of the State case the following are the events leading to
the stabbing of the deceased by the appellant.
On
19 July 2002 the appellant left home in the company of his wife
Rutendo Jongwe nee Muusha going to town for shopping. While in
town
the wife asked to be dropped at Globe House, corner Jason Moyo Avenue
and First Street, where she wanted to see a friend Jacqualine
Makoni
of Muskwe and Associates Legal Practitioners. This was at about
1400 hours.
The
appellant later returned and walked into the office of Donald
Mashingaidze a lawyer at that company, looking for his wife who
by
then was with Jacqualine Makoni in her office.
When
the appellant entered Donald Mashingaizdes office he saw him
drafting a letter of demand and at that time he realised for
the
first time that his wife was not on a casual visit, but was instead
instituting divorce proceedings.
There
was a heated exchange of words between the appellant and the lawyer,
in which the appellant threatened that the case was going
to soil
a lot of people.
The
appellant went out of the office and joined his wife who was in the
office of Jacqualine Makoni and both husband and wife left
for their
home at about 1520 hours.
When
the couple arrived home, the appellant took his mother to Wilkins
Hospital to see a sick brother leaving his wife at home with
their
seven-month old baby and a maid.
The
appellant returned home alone and upon arrival at about 1600 hours he
quarreled with his wife over the pending divorce proceedings.
During the argument the appellant grabbed a kitchen knife and
brutally stabbed his defenceless wife eight times in the chest, neck,
face and forearms.
He
left her bleeding profusely and drove away. The wife struggled to
the main gate calling for help where she collapsed. Mrs Dembo,
a
neighbour who heard the cry for help immediately rushed her to
Avenues Clinic where she died on 20 July 2002 as a result of the
wounds inflicted upon her by the appellant.
Thus, the issue is whether the
appellant found his wife, the deceased, being intimate with Mr
Mashingaidze or that allegation is
false as she was with her friend
Ms Makoni upon the appellants return to Muskwe and Associates.
This dispute
of fact is critical to the defence of provocation raised by the
appellant. If indeed the appellant found the deceased
being
intimate with Mashingaidze that would enhance the appellants
defence of provocation. It is pertinent to observe at this
point
that the State version of events leading to the killing of the
deceased as set out above is plausible and has a ring of truth
while
the appellants version as set out in his warned and cautioned
statement is riddled with improbabilities. According to
the
affidavit of the investigating officer the deceased had met the
alleged paramour only once previously. The two hardly knew
each
other. The deceased was a professional woman. She was married
with a seven month old baby. The question is, is it likely
that a
professional woman would desire to be laid on a desk by a man she
hardly knew? The door to the office was unlocked and
that is why,
on the appellants version, he was able to enter and see his wife
being intimate with the paramour. This incident
is alleged to have
occurred during working hours when the risk of the parties being
caught in the act was extremely high. The appellants
own
reaction seriously undermines his own story. Given the brutal
manner in which the appellant killed the deceased for whatever
reason
it is difficult to believe that he would simply walk away from a man
he finds ravishing his wife. It is common cause that
he reacted
very violently and killed his wife to provocation that must be less
than the provocation of seeing his wife being intimate
with another
man.
The trial
court will have to consider the above strengths and weaknesses of
both the State case and the defence case and resolve
the dispute of
fact. If the appellants version of events is found to be false
and the State version is found to be correct then
the inescapable
conclusion is that the appellant killed his wife because she had
commenced divorce proceedings against him. If
he could not have her
then no one else was going to have her would be the most logical
motive. Such a finding would leave the appellant
with very little
prospects of success in establishing a defence to a charge of murder
and the existence of extenuating circumstances
in order to avoid the
imposition of the death sentence. The appellant is a legal
practitioner who, I have no doubt, would be familiar
with the
strengths and weaknesses of his case and would stand guided or
influenced by those considerations in deciding what chances
he should
take.
This Court
has had occasion to set out principles that should guide a court in
determining an application for bail.
In the case
of Aitken & Another
v Attorney-General
1992 (1) ZLR 249 (S) this Court reviewed a long line of cases and
laid down the following guiding principles for determination of
bail
applications:-
That the
Supreme Court can only interfere with a High Court decision if there
has been a misdirection or irregularity in the High
Court or if the
judge had exercised his discretion in a manner which was so
unreasonable as to vitiate the decision reached.
That when
dealing with the matter of bail the court had to strike a balance
between the liberty of accused and the States need
to ensure that
the person stood trial and did not interfere with the course of
justice.
That the
onus
is on the accused to show on a balance of probabilities why it was
in the interests of justice that he should be freed on bail,
but
that amount of evidence necessary for him to discharge this onus
would vary according to the circumstances of each case.
That in
judging the risk that an accused person would abscond the court
should be guided by the following factors:
the
nature of the charge and the severity of the punishment likely to be
imposed on the accused upon conviction;
the
apparent strength or weaknesses of the State case;
the
accuseds ability to reach another country and the absence of
extradition facilities from the other countries;
the
accuseds previous behaviour;
the
credibility of the accuseds own assurance of his intention and
motivation to remain and stand trial;
that the
risk of interference with investigation if alleged must be well
founded and not based on unsubstantiated allegation and
suspicion.
The
majority of the above principles have no relevance to the present
case. However, the principle set out in paragraph d is apposite.
The court a quo
found that the appellant was facing a very serious charge and that
upon conviction he faces a lengthy term of imprisonment. On
this
basis the court a quo
concluded that the appellant was likely to abscond. In my view this
was a proper exercise of the learned judges discretion and
the
decision cannot be said to be irrational.
Although
the learned judge did not comment in any detail on the strength or
otherwise of the State case the facts of this case are
as set out
above. As I said earlier this case turns of the risk of abscondment
by the appellant. In Aitkens
case, supra,
GUBBAY CJ at p 254D-G sets out how the court should assess the risk
of abscondment. He had this to say:-
THE
RISK OF ABSCONDMENT
In judging
this risk the court ascribes to the accused the ordinary motives and
fears that sway human nature. Accordingly, it is
guided by the
character of the charges and the penalties which in all probability
would be imposed if convicted; the strength of
the State case; the
ability to flee to a foreign country and the absence of extradition
facilities; the past response to being
released on bail; and the
assurance given that it is intended to stand trial.
It is quite
clear from the above remarks that the critical factors in the above
approach are the nature
of the charges and the severity of the punishment likely to be
imposed upon conviction and also the apparent strengths
and
weaknesses of the State case.
In the
present case there is no doubt that the offence with which the
appellant is charged is very serious. Murder is a very serious
offence for which an accused is required by law to be sentenced to
death unless extenuating circumstances are found to exist. Thus,
if
the court concludes that no extenuating circumstances exist in this
case the appellant faces the prospects of the death sentence.
In this case
the evidence against the appellant is very cogent, if not,
overwhelming. The appellant admits inflicting the wounds
found on
the deceased. The post mortem report clearly establishes the nature
and the multiplicity of the stab wounds that he inflicted.
The post
mortem report clearly establishes that this was a savage and brutal
attack on the deceased. According to the post mortem
report the
following injuries were found on the deceased:-
Front:
Sharp
incised stab wound 8,5cm (original =
4cm according to
surgeon) on right breast (upper outer quadrant) sutured 7 sutures.
Round
sharp stab wound 0,5cm diameter lateral right chest wall
Sharp
therapeutic drain wound 10th
intercostal space 2 x 1cm (drain site) unsutured
Clean
therapeutic wound in 6th
ICS 20cm with 14 sutures (site of thoracotomy)
Sharp
incised stab wound left breast (upper outer quadrant) 2,5cm sutured
(2 sutures)
0,5
cm diameter round stab wound on left breast (upper inner quadrant)
approximately 1cm deep
Clean
sutured wound 2,5 cm (1 suture) (left submammary adjacent to lower
outer quadrant)
2,5cm
sharp incised wound left shoulder 2 sutures approximately 2cm deep
2,5
cm incised stab wound left wrist unsutured approximately 0,2 cm deep
L-shaped
wound 3 x 1,5cm on right side of face. (5 sutures approximately
0,5cm deep
1,5cm
incised stab wound right neck (1 suture) approximately 1cm deep
Pointed
0,3cm diameter wound left side of neck approximately 0,5cm deep
16
cm healed surgical scar on lower abdomen (pfannensteil Caesarean
scar)
The
weapon used is described in the post mortem report as:-
Prestige
stainless Rostfrei Inox kitchen knife with a 13x3x2cm black handle
and a 16x3x0,1cm serrated singled-edges cutting flat
blade.
The doctors
conclusion was:-
The
deceased was a 23 year old female who sustained a bilateral
haemothraces following fatal stab chest wounds during a domestic
dispute
with the husband. At autopsy there were two main fatal
wounds through the breasts each in the 3rd
intercostal space associated with incised lung left upper lobe, lung
right upper lobe, right heart atrial appendage, a fractured
left 3rd
rib and a combined total of 1,1 litres of blood in the pleural
cavities. Both wounds were approximately 14cm deep from the skin
surface of breasts to the endocardium of right atrium and the incised
lung on the left.
Bilateral
hemothoraces due to the stab wounds with a single-edged 16cm
flat-bladed kitchen knife was the cause of death.
Thus, the
post mortem report reveals that the appellant inflicted on the
deceased multiple stab wounds. According to the diagram
not less
than eight stab wounds were inflicted on the deceased. Of these,
two stab wounds were particularly serious and fatal.
These two
fatal wounds were to the chest just below each of the breasts.
These stab wounds were directed at a very vulnerable
part of the
body. These two stab wounds were each 14cm deep from the skin
surface to the endocardium and pierced the lung.
The kitchen
knife used to inflict the wounds, from its description in the post
mortem report, is a formidable weapon.
Given the
nature and the seriousness of the wounds; the vulnerability of the
part of the body to which the stabbing was directed;
the degree of
force that must have been required to inflict such wounds; the
inevitable inference is that whoever inflicted those
wounds must have
intended to bring about the death of the deceased by his action or,
at least, foresaw the death of the victim a
virtual certainty.
The
appellant raised the defence of provocation. I have already
commented on the respective merits of the defence case and the
State
case in this regard. The onus
to establish the defence of provocation and extenuating circumstances
is on the appellant. Should the trial court reject his version
of
events the appellant will have problems establishing extenuating
circumstances.
For the
above reasons I am satisfied that the evidence against the appellant
is overwhelming and the prospects of conviction for
an offence
involving the death of the deceased is a virtual certainty. I am
also satisfied that the prospects of the appellant
receiving a long
prison term or even the death sentence, if convicted of murder, are
real.
I am equally
satisfied that because the prospects of conviction and upon
conviction the imposition of a long prison term, indeed,
even the
death sentence are real, the temptation for the appellant to abscond
if granted bail is irresistible. On this basis alone
I would
dismiss the appeal. The need to consider the other grounds for the
refusal to grant bail fall away.
Byron
Venturas & Partners,
appellant's legal practitioners