REPORTABLE (69)

Judgment No. SC 71/07

Crim. Appeal No. 189/02

(1) IRVINE KANHUMWA (2) GATSI KANHUMWA

(3) BUSANI TSHUMA v THE STATE

SUPREME COURT OF ZIMBABWE

CHIYAUSIKU CJ, ZIYAMBI JA & MALABA JA

BULAWAYO, NOVEMBER 29, 2004

J Dhalamini, for the first appellant

C T Hikwa, for the second and third appellants

A Gaibie, for the respondent

CHIDYAUSIKU  CJ:

The appellants in this case were charged with and convicted of murder with actual intent. They were sentenced to death. They appealed to this Court against both conviction and sentence. After hearing counsel, the Court dismissed the appeal against both conviction and sentence. The Court indicated that reasons for judgment were to follow. The following are the reasons for judgment.

Before going into the reasons for judgment, I wish to express my regret at the delay in handing down these reasons. When the appeal was dismissed the record was inadvertently filed away, most probably because officers thought the matter had been finalised. It was only discovered that reasons for judgment had not yet been handed down during a routine check of the records of condemned prisoners last week.

The three appellants were represented by three different counsel during the appeal. All the three counsel for the appellants submitted that the evidence against the three appellants was so overwhelming that conviction was inevitable. The three counsel also submitted that as the murder was committed in the course of a robbery, a finding of no extenuation was equally inevitable.

In my view, the concessions by the three appellants’ counsel were properly made. The evidence against the appellants though circumstantial proves the guilt of the appellants beyond any doubt. The killing of the deceased in the course of the robbery was cruel, cold-blooded and there is nothing that is mitigatory of the conduct of the appellants.

The facts of the case and the evidence against the appellants are very briefly as follows.

On 12 February 2000 the three appellants, acting in common purpose, broke into the home of the deceased and her husband. The deceased, Mary Anagostopoulos, an elderly woman, resided with her husband at No. 91, 9^th Street, Gweru. The appellants subdued the deceased and her husband before strangling the deceased with a cord, and making off with about Z$70 000.00 and US$500 in cash, a Seiko wristwatch and a bunch of keys.

According to Emmanuel Anagostopoulos, the husband of the deceased, some intruders broke into their home on the night of the murder. He heard his wife screaming out. He went to check what was going on in the bedroom. He was accosted by a tall man wearing a balaclava who was holding a knife. Immediately a second masked man appeared on the scene and struck him on the head a couple of times and he fell down. The intruders left him lying down and exited. He called out to his wife who gave no response. He proceeded to the bedroom which he found ransacked and discovered his wife lying on the floor. An ambulance was called and upon its arrival it was confirmed that his wife was dead.

Emmanuel Anagostopoulos also gave evidence that a bunch of keys that opened most of the doors in his house went missing. He later identified the bunch of keys to his house that went missing when they were produced as an exhibit in court.

In short, the evidence of Emmanuel Anagostopoulos was that a robbery occurred at his residence during which his wife was killed and that his bedroom was ransacked; he identified the keys to his house which had been recovered by the police; and that there were two assailants in his home when the robbery took place.

Subsequent investigations by the investigating police officer revealed that access to the house had been gained through a hole that had been cut in the perimeter fence. The investigating officer’s evidence was that he recovered a Bible in the possession of the first appellant. In the Bible was a handwritten entry of the details of the robbery. Upon interrogating the first appellant, the involvement of the second and third appellants in the offence was revealed to him.

The investigating officer arrested him and the other two appellants. The three appellants confessed to the crime and made indications at the scene of the crime. The indications by all the appellants were videotaped and produced in court. The confessions and the indications were challenged on the basis that they were made under duress and stage-managed. The court a quo dismissed the challenge and placed reliance on the confessions and the indications. The evidence on record supports the conclusion that the confessions and the indications were made freely and voluntarily.

After the indications, the second appellant took the investigating officer to the first appellant’s house, where they found the first appellant’s wife and maid. As a result of talking to them, a bunch of keys was recovered hidden in a maize field in the first appellant’s garden. The bunch of keys was identified in court by the deceased’s husband as the bunch of keys to his house that went missing the day of the robbery. The keys unlocked most of the doors at the deceased’s residence.

A bolt cutter was also recovered at the home of the first appellant. Forensic tests established that this was the bolt cutter that was used to cut a hole in the perimeter fence at the deceased’s house.

The evidence of independent witnesses, which was found by the court a quo to be credible, placed the three appellants in the vicinity of the scene of the crime on the night that the deceased was murdered. This in effect disproved the alibis of the three appellants.

Thus, apart from the confessions of the three appellants and the indications made by them, there was other cogent evidence implicating the three appellants in the commission of the murder.

On the basis of this evidence, this Court was satisfied that the court a quo was correct in convicting all the three accused of the murder of the deceased. The evidence supporting the convictions is simply overwhelming.

As regards sentence, there is nothing on the record that can be said for any of the three appellants. This was a killing of an old, defenceless woman in the process of a robbery. The murder was cold-blooded and cruel and nothing can be said in favour of any of the three appellants. Accordingly, the court a quo’s finding that there were no extenuating circumstances cannot be faulted.

It was for these reasons that the appeal against both conviction and sentence was dismissed.

ZIYAMBI JA: I agree.

MALABA JA: I agree.

Pro deo