DISTRIBUTABLE (108)

Judgment No. SC. 131/04

Crim. Appeal No. 107/03

RUSSELL WAYNE LABUSCHAGNE v THE STATE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA & ZIYAMBI JA

HARARE, NOVEMBER 25, 2004 & FEBRUARY 22, 2005

J C Andersen SC, for the appellant

R K Tokwe, for the respondent

ZIYAMBI JA: The appellant was convicted by the High Court sitting at Bulawayo of the murder, with a constructive intent, of Wilson Mudimba at Sinamwenda River, Binga, on 28 November 2000. He was sentenced to undergo a term of fifteen years’ imprisonment. He now appeals to this Court against both the conviction and sentence.

Siansole Muchimba (“Muchimba”) was the last State witness to see the deceased alive. He is a fisherman at Chimbuyu Fishing Camp in Binga. He and the deceased were friends. His evidence was that on 28 November 2000 he and the deceased were fishing from a metal canoe along the Sinamwenda River. At about 5 pm the appellant, accompanied by Walter Ryan Claasen (“Claasen”), approached them in a white speedboat. The appellant cut into the fishing nets which had earlier been set by Muchimba and the deceased and then rammed into the side of their canoe, thereby capsizing it and causing them to fall into the water. The deceased and he swam towards the speedboat and held onto its rails as their canoe had drifted away and they were some thirty metres from the riverbank. However, the appellant and Claasen took hold of Muchimba’s hands and pulled him into the speedboat. In so doing both lost their balance and fell into the water. Muchimba swam to the riverbank for safety, while the appellant and Claasen swam back to the speedboat.

Once in the speedboat the appellant and Claasen took hold of the deceased, who had remained clinging to the rails of the speedboat. While Claasen pressed the deceased’s hands against the railings, the appellant, who had armed himself with an oar from the capsized canoe, assaulted the deceased with the oar several times on his head and hands. During the assault, one blow missed the deceased and landed on the speedboat, causing the oar to break in two. The deceased let go of the rails and fell into the water. He swam for safety towards a petrified tree that protruded from the water and, on reaching it, held onto the stump. But the appellant and Claasen followed him to the petrified tree and rammed the speedboat into his back as he clung to the tree stump. The deceased lost his grip, fell into the water and disappeared for some time. He then resurfaced and shouted: “I am dying; I am going”. With that he disappeared under the water.

The appellant and Claasen then turned their attention to the witness, who was standing on the riverbank, but he took to his heels and fled. He later saw the appellant and Claasen camped on the riverbank some distance away.

Muchimba went to Chimbuyu Fishing Camp, where he reported the matter to Samuel Mwinde (“Mwinde”) and James Makore (“Makore”). The three then proceeded to report the matter to Stanley Michael Shaw (“Shaw”), whom they requested to radio the police. Shaw advised them to return the next morning and they did – but on their arrival they found the appellant with Shaw, so they decided to go to the scene of the incident. At the scene, they observed bloodstains on a petrified tree branch and retrieved a broken oar and a green cap belonging to the appellant. There was no sign of the body of the deceased. They returned to Shaw, who then summoned the police.

The police arrived on 1 December 2000 and searched for the deceased’s body without success. Following indications made by Muchimba, the appellant and Claasen were arrested and charged with murder.

The appellant’s evidence was to the following effect. He is a safari operator operating from his fishing camp at Sinamwenda Bay. On 28 November 2000, at about 4 pm, he went fishing for tigerfish in the lake, accompanied by Claasen. About one hundred and fifty metres or so from the shore, his cap blew off his head while he was driving the speedboat and landed in the water. It proved difficult to recover it owing to the swells in the water, which caused the cap to go “up and down in the water”. He decided to leave it – intending to look for it later. They proceeded tiger-fishing and were returning at approximately 5.30 pm when, about three to four hundred yards away from the fishing party, he noticed a net extended from a tree in the lake to the shore, in a prohibited netting area. He cut the net at both ends and was about to head for his camp when he saw two people in a steel boat approximately eight metres from the shore. He drove towards them as they paddled towards the shore. When he was two metres from them, and they were about three metres from the shore, they jumped out of their boat into the water. They could both stand. The water seemed to be about five feet deep. Muchimba left the water first and ran into the bush without looking back, with the “assumed” deceased following about five metres behind him. The appellant stopped his speedboat beside their canoe, looked inside and then left to rejoin his fishing party. After about twenty minutes they proceeded to his fishing camp, where at about 7 pm they had a braai until 10 pm, after which they returned to the camp.

The next morning the appellant was going tiger-fishing when he received a message that Shaw wanted to see him. He went to Shaw’s house and was told that he was being accused of drowning someone. He told Shaw to call the police. As he left Shaw’s house Makore accosted him, saying that: “Your people have stolen my pots”. He told Makore twenty times to call the police. Makore is a police reservist. He made no mention of the drowning at all. The appellant then went tiger-fishing and returned at 11 o’clock for breakfast. As he reached the shore, Makore walked up to his boat with a paddle in his hand, accompanied by Muchimba and two or three others. Makore held the paddle up and said: “You killed him, this is what you killed him with”. The appellant told him to go and make a report to the police and went on to have breakfast. At 3 pm he went fishing again.

Claasen’s evidence was corroborative of the appellant’s.

Claasen was convicted of assault with intent to commit grievous bodily harm, while the appellant was convicted of murder with a constructive intent to kill. There is no appeal by Claasen.

The main ground of appeal advanced by counsel on behalf of the appellant is that the conviction, based as it was on the evidence of a single witness – Muchimba – could not be sustained as the evidence of Muchimba, far from being satisfactory in all material respects, was contradictory and inconsistent with the real evidence and probabilities. He submitted also that the court a quo misdirected itself by not referring to the cautionary rule at all.

It is trite that in every criminal case the onus is on the State to establish the case against an accused person beyond a reasonable doubt. This onus never shifts. Even an accused person’s untruthfulness standing by itself is not sufficient for a court to draw an inference of guilt, since an innocent person may falsely deny certain facts because he fears that admitting them would land him in trouble. See S v Gijima 1986 (1) ZLR 33 (S); S v Dladla 1980 (1) SA 526 (AD) at 530 C-E.

However, the fact that an accused person lied or gave false evidence is a factor to be considered when drawing inferences of his guilt. See Broadhurst v Reginam [1964] 1 All ER 111 at 120 A-B, where LORD DEVLIN made the following remarks:

“But if on the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.”

The learned judge in the court a quo disbelieved the appellant, whom he found to be untruthful, and accepted the evidence of Muchimba.

Muchimba was the only eyewitness to the incident and his evidence was required to be treated with caution. With reference to the evidence of single witnesses, our courts have pronounced as follows:

“It is, of course, permissible in terms of s 253 of the Criminal Procedure and Evidence Act [Chapter 59] for a court to convict a person on the single evidence of a competent and credible witness. The recognised test is whether his evidence is found to be satisfactory in every material respect. See, for instance, R v Mokoena 1932 OPD 79 and R v Ellis 1961 R & N 468 (FSC). But, as cautioned by LEWIS JP in S v Nyati 1977 (2) RLR 315 (AD) at 318 E-H, that test is not to be regarded as an inflexible rule of thumb. There is no magic formula which determines when a conviction is warranted upon the testimony of a single witness. His evidence must be approached with caution, and the merits thereof weighed against any factors which militate against its credibility. In essence a commonsense approach must be applied. If the court is convinced beyond a reasonable doubt that the sole witness has spoken the truth, it must convict, notwithstanding that he was in some respects unsatisfactory. See Hoffmann and Zeffertt South African Law of Evidence 3 ed at 451.”

Per GUBBAY JA (as he then was) in S v Nathoo Supermarket (Pvt) Ltd 1987 (2) ZLR 136 at 138 D-F. And further:

“… ‘the court must first decide whether the witness is to be believed, and must then satisfy itself that it has not been deceived by an apparently honest witness’. His evidence must be clear and satisfactory in every material respect. See Ellis v R 1961 R & N 468 (FSC); S v Bvundura SC 125-82; S v Muranda SC 36-84.”

Per KORSAH  JA in S v Shoniwa 1990 (1) ZLR 311 (SC) at 313G.

The failure to refer to the cautionary rule is not in itself a misdirection. What is required is a demonstration or indication from the reasoning of the learned judge that he exercised caution in the assessment of, and placing reliance on, the evidence of the single witness. See S v Mutandi 1996 (1) ZLR 367 (H) at 371 G-H.

The court a quo was confronted with two opposing versions of what transpired at the scene of the crime - that of Muchimba, who deposed to a physical confrontation between the appellant and the deceased; as opposed to the appellant’s version, that there was no confrontation whatsoever, but that the deceased and Muchimba, upon seeing the appellant, quickly paddled to the riverbank and ran away; and further, that Muchimba had made a false allegation of murder.

The court a quo found Muchimba to be an honest witness and accepted his evidence in preference to that of the appellant. The two versions are mutually destructive. Acceptance of one necessarily means rejection of the other.

I am unable to find any error on the part of the court a quo in accepting Muchimba’s evidence. It was corroborated in a material respect by Shaw, who was a State witness and a friend of the appellant. That Shaw had no reason to lie against the appellant was readily admitted by the latter. Shaw told the court that the appellant had related to him how he “bumped” into the boat in which the deceased and Muchimba were. The following is an extract from Shaw’s evidence as it appears from the record:

“Q So what did the accused say to you? A. Russell?

Q. Yes. A. He said that he went down the river and he bumped the boat over and the one guy got up and ran away up the hill.

Q. He said he bumped their boat over? A. Yes.”

The evidence of Shaw was fatal to the appellant’s case. It adequately corroborated Muchimba’s evidence. In addition, two witnesses, Mwinde and Makore, told the court that Muchimba made a report of the drowning of the deceased to them and indicated the place in the water where his canoe capsized.

Much argument was advanced, on behalf of the appellant, on the allegation that Muchimba made no mention to the witnesses of the capsizing of his canoe. According to Shaw, Muchimba reported that the appellant had “beaten us and drowned my friend”, no reference being made to a collision. According to Makore, the report made by Muchimba was “one of them had been assaulted, fallen into the river and drowned …”.

In my view, it was clear from Muchimba’s report that the appellant had assaulted the deceased and caused him to drown. The failure to mention the ramming of the canoe could easily be attributed to the fact that such a detail was of secondary importance to him at the time, his main purpose being to report the death of the deceased at the hands of the appellant. In any event, the appellant himself mentioned the ramming of the canoe, according to the evidence of Shaw, which the court a quo believed on that point. Accordingly the learned trial judge’s acceptance of Muchimba’s evidence of the ramming of the canoe cannot be faulted.

Muchimba’s evidence that there was blood on the tree stump where the deceased was last assaulted by the appellant was also criticised by counsel. It was submitted that no reliance could be placed on this evidence since the police saw no blood when they visited the scene.

Mwinde’s evidence reads in part as follows:

“Q. Did you make any other observation of the tree stump? A. I saw some blood.

Q. Whereabouts on the stump? A. It was as from the top of the piece of tree stump. It was showing going downwards.

Q. How much blood was there on the tree stump? A. The blood was not much on the tree stump. After we had seen the tree stump we then went back. When we went back it then started drizzling and there was some wind blowing and the following day that is when the police came. …

Q. If you might continue? A. When the police arrived people had gathered so the people together with the police went to the scene. When the police arrived we took them to the scene at the tree stump and due to the drizzle which had occurred the police did not find any blood.”

Makore also saw blood on the tree stump. The following is an extract from his evidence under cross-examination:

“Q. You saw blood on this tree? A. Yes.

Q. This blood was on top of the tree? A. The blood was not right at the top of the tree but on the sides where he had been holding onto.

Q. So the blood indicated handprints, the blood you found at the shore? A. No I did not see any palm-prints or fingerprints. I only saw blood.

Q. How do you know it was blood from holding onto the tree? A. I saw blood.

Q. Where did you get this about holding onto the tree? A. Siansole (Muchimba) told me that he had been holding onto the tree on that spot …”.

There was accordingly abundant corroboration of Muchimba’s evidence in this regard and in every material respect.

The appellant, on the other hand, was found by the court a quo to be untruthful. When asked to comment on Shaw’s evidence that the appellant had told him he “bumped their boat and then one of them ran out of the water”, he said:

“Well first of all I never said anything like that to Mike Shaw. Secondly if I said something like that then basically I am saying I drowned somebody.”

Later he was questioned by the court a quo as follows:

Q. So are you saying did he (Shaw) get that story from Muchimba or from you? A. I have no idea, my lord, he knows the story, sir. Well he was confused of what happened. I have no idea but the last thing in the world I would do if I had drowned somebody was to go and tell somebody that I had drowned someone.”

In view of the foregoing, the acceptance by the learned trial judge of the evidence of Muchimba, as corroborated by the three State witnesses, is unassailable. The guilt of the appellant was established beyond reasonable doubt and his conviction of the murder of the deceased cannot be faulted.

The appeal against Sentence:

It was submitted that the sentence was in all the circumstances excessive. The mitigatory features advanced on behalf of the appellant in his notice of appeal were that he acted as “an overzealous citizen trying to prevent a serial, and well known, fish poacher from decimating the river of fish, with nets, when other types of fishing were allowed”.

It was also submitted that the court a quo misdirected itself in finding that the appellant’s attempt to return to the deceased when he realised that he was drowning was equally consistent with a sinister motive, namely that the appellant did not intend to save the deceased. I find no misdirection as alleged. Certainly the actions of the appellant in going towards the deceased, who was apparently drowning, were equally consistent with a desire to save him or to complete the work of drowning the deceased. The learned trial judge placed no weight on either version. I discern no error in his approach.

As to the appellant’s overzealousness, if overzealousness it was, the court a quo correctly dismissed this as an excuse for the appellant to embark on such a murderous attack of the deceased. He rammed into the canoe, capsizing it, assaulted the deceased as he clung to the speedboat, and again rammed into the deceased as he clung to the tree stump for safety. The attack was correctly found by the learned trial judge to be an unprovoked one on a defenceless victim.

The appellant showed no remorse whatsoever. After assaulting the deceased and causing him to drown, he returned to his camp where he had a braai – not troubling himself to search for the body or to make a report. The next morning he went fishing as though nothing had happened. His actions were callous, to say the least. I am unable, therefore, to agree that the sentence imposed was excessive.

Accordingly there is no merit whatsoever in the appeal and it is dismissed in its entirety.

CHIDYAUSIKU CJ: I agree.

SANDURA JA: I agree.

Gill, Godlonton & Gerrans, appellant's legal practitioners