DISTRIBUTABLE (124)

Judgment No. SC 135/04

Civil Appeal No. 215/03

KILLION MPOFU v THE STATE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & GWAUNZA JA

BULAWAYO, NOVEMBER 29 2004 & MAY 19, 2005

B Ndove, for the appellant

M Cheda, for the respondent

GWAUNZA JA: The appellant was convicted in the High Court of two counts of murder with actual intent, and sentenced to death. It was alleged that he shot the two deceased persons – an elderly married couple, with their own gun. The appellant now appeals to this Court against both the conviction and sentence.

The undisputed facts of the matter are as follows:

The appellant, who was 22 years old at the time of the deceased persons’ death, was employed by them as a domestic worker. His duties included cleaning the house, washing clothes and working in the garden. The deceased couple, David John and Audrey Beryl Damon, were aged 71 and 81 years respectively.

On 22 January 2001, Bernard Mutsvunguma (“Bernard”), who was employed by the deceased as a security guard, arrived at the latter’s residence at around 17:45 hours. He noticed that all the doors to the house were closed, the curtains drawn, and that the television was on high volume. A search for the two deceased in the house, yielded no results. Bernard then decided to sit in the garage and that was when he noticed garden cushions stacked against a partially opened door. Upon opening this door, he saw a revolver, a holster, the key to the kitchen door and some ammunition. He called a tenant of the deceased couple, a police officer by the name Angeline, who opened the kitchen door and discovered the deceased’s bodies in the dining room lying in a pool of blood. They had been shot.

It was Angeline’s evidence that there was no sign of any struggle in the room in which the bodies were found. She had, in fact, observed two partially filled wine glasses resting on the table. Angeline also testified that the two deceased persons were kind and caring people, who extended many acts of kindness towards not only the appellant but Angeline herself as well. In her opinion, the two were not racists.

The evidence relating to the lack of any struggle in the dining room was corroborated by the police detail called to the scene, Detective Inspector Mavundla. He asserted that he had conducted a search of the house and noticed a wardrobe which was open, and clothes therein disturbed. He also informed the Court that the following morning, he returned to the deceased’s residence hoping to see the appellant on reporting for duty. The appellant did not appear but was instead, later arrested at Amaveni bus terminus where he intended to catch a bus to his rural home. Cash in the amount of $5 000 was recovered from the appellant, together with a handful of new clothes.

The appellant later recorded a warned and cautioned statement, which was confirmed by a magistrate two days later.

Post mortem reports produced before the court a quo indicated that the bullet that killed Mr Damon had gone through the nostril and lodged in the occipital lobe of the brain. This had resulted in extensive brain damage that had caused his death. In respect of Mrs Damon, the report indicated that the doctor had found two bullet wounds in her skull.

The appellant pleaded not guilty to the charges of murder. He gave two conflicting accounts of what had happened between him and the two deceased persons. The first account was contained in his warned and cautioned statement, and read as follows:

“I am Killion Mpofu, my national registration numbers are 23-010021 R 23. What happened is that the white man gave me a job to drain some oil and it became apparent that the spanners were missing and we started arguing and he went and took a firearm intending to shoot me with the firearm. I kicked his hand and the firearm to the ground and I picked the firearm and shot him on the head and he fell to the ground, his wife came running and I thought she was going to wrestle the firearm from me and I shot her on the head and she fell down, that’s when I went outside and sat down and thereafter I thought of taking some money from the safe and I also took some beer and drank. Sometime after three a neighbour phoned and I told him that he was not there and I later left for my house”.

The second account was contained in his defence outline, and repeated in his oral evidence in the court a quo. As indicated, this account was markedly different from the one contained in his warned and cautioned statement. The only consistency related to the argument over the spanners. According to this second account, the deceased, Mr Damon, shouted the words “You Africans are a problem, today I want to fix you”, threw the wine he was drinking from the glass onto the appellant’s face and assaulted the appellant twice with the open hand.

According to this account, it was the second deceased, Mrs Damon, and not Mr Damon, who went to the bedroom and brought back with her the gun in question. She pointed the gun at the appellant, who was locked in an embrace with Mr Damon, as he tried to fend off further assaults. The appellant asserts that Mr Damon was shot by his wife after he (appellant) had “swiftly twisted and turned the deceased” towards the direction of the gun she was wielding. He then kicked the hand of the second deceased, i.e. Mrs Damon, resulting in the gun falling to the ground. It is the appellant’s evidence that he then snatched the gun from the floor but before he could throw it out of the window, Mrs Damon “dived” onto him and got hold of the gun. In the resultant struggle, the gun went off once, hitting Mrs Damon.

When questioned about the contradictions in the two accounts given by him, the appellant asserted he had been assaulted by the police and forced to record that he had shot the two deceased persons. He also asserted that relations between him and his employers were good, except when Mr Damon was drunk, when he would then “harass” the appellant. However his employers had bought him a bicycle, gave him meals and paid him two salaries, one for being a gardener, and the other for being a domestic worker. This evidence corroborated the earlier evidence of Angeline, on the same point.

The appellant failed, under cross examination to explain why he had lied to one Bukhosi, who phoned after the deceased had died, that they had gone to Gweru. Bukhosi had asked to talk to Mr Damon.

The court a quo found the appellant to be an unreliable witness, who tended to avoid answering questions put to him, in addition to constantly changing his story. In rejecting the version of events as related by the appellant in the court a quo, the learned judge, in my view correctly, noted as follows at p 8 of his judgment:

“Accused’s explanation of how the shooting took place is very difficult to believe and indeed baffles one’s mind. His description and demonstration of the struggle was like a movie star film (sic), where he, as a star managed to duck a bullet with such speed that it missed him and shot Mr Damon. As if this was not enough, he kicked Mrs Damon's hand with such speed, style and speed normally displayed by a Kungfu fighter.

The deceased people were fairly old people, they were very old people between 70 and 80 years (old),as compared to the appellant who at the time was 22. The accused’s description therefore of what took place on the day in question is far from convincing”.

There were other aspects of the appellant’s evidence that were highly improbable.

By his own evidence the appellant placed himself right at the centre of the confrontation that ended with the deceased’s deaths. Whatever the true reason for such a confrontation may have been, there is some doubt that the struggle between the appellant and Mr Damon, and the one that he said followed between him and Mrs Damon, if it took place, happened with the intensity and deadliness that the appellant suggests.

There was, in the first place, the advanced ages of the deceased, relative to the appellant’s. No matter how fit and agile the two deceased may have been for their respective ages, it is improbable they would have been able to wrestle with the appellant with the vigour suggested in his evidence. In the case of Mr Damon, he would have been further incapacitated by the alcohol that he was said to have consumed before the events in question took place. Nor is it easy to conceive of a scene where Mrs Damon, at 81, would have been able to “dive” onto the appellant and snatch the gun from him.

Secondly there was the total absence of any signs of a struggle in the room in which it was supposed to have taken place. The presence of two glasses of wine on the table, which were more than half full, strongly suggest the lack of such a struggle. The appellant tried unconvincingly to persuade the Court that one of the glasses – Mr Damon’s – was partially filled with wine because he had supposedly only thrown a small portion of the contents onto his (appellant’s) face at the onset of the altercation between them. Apart from the improbability of an angry person retaining enough self control not to throw all the contents of a small glass of wine onto the face of the person who is object of his anger, the appellant himself had earlier testified that some of the wine from the same glass had flowed over his clothes while some had spilt onto the carpet. It is hard, after all this, to imagine the said glass of wine still retaining three quarters of its contents.

The court a quo was therefore correct in rejecting this highly improbable evidence, and accepting that the struggle referred to had not taken place in the manner suggested by the appellant in the account he gave in court.

Finally, there was the issue of the bullet wounds recorded on Mrs Damon’s body. According to the post mortem report, she was shot twice in the head. It can be inferred from this that either one of the shots fired at her would have been fatal. The postmortem report discredited the appellant’s evidence that Mrs Damon had been shot only once. More importantly, the report destroyed his evidence that she had accidentally shot herself. Assuming the gun had indeed been discharged during the struggle between the appellant and Mrs Damon, for the gun, it is in my view so highly improbable, as to be impossible, that she would have been able to pull the trigger again after she had been mortally shot through the head. Asked to explain the anomaly, the appellant failed to explain how Mrs Damon ended up with two gunshot wounds to her skull, when according to him, only one shot was discharged.

When the improbabilities in the appellant’s evidence are taken together, little if any doubt is left that the account of the circumstances leading to the deceased’s deaths, that the appellant gave in his defence outline and in his oral evidence, was false.

As correctly pointed out to him in the court a quo the appellant had come up with this account having belatedly realised how incriminating the version contained in his warned and cautioned statement was. There is much in the evidence before the Court, to render that version the more probable of the two. The warned and cautioned statement was recorded when the events of the fateful day were still fresh in the appellant’s mind. The statement was confirmed before the Magistrate the very next day, and the appellant informed the magistrate that he had made the statement freely and voluntarily.

The court a quo accepted the evidence of Angeline – found to be a credible witness – that the deceased, Mr Damon, had bought the gun in question for protection, and had then taught the appellant how to use it. Thus contrary to his evidence, the appellant knew how to use a gun. Added to all this was the appellant’s conduct after the two deceased had died. Instead of telling Bukhosi what he alleged had happened, the appellant lied that the two deceased persons had travelled to Gweru. He also went outside to collect some laundry from the clothesline, increased the volume of the television, picked up the gun and took it outside, to the garage, together with the keys to the kitchen door. He had then gone to his lodgings before proceeding, the following morning, to the bus terminus where he intended to catch a bus to his rural home. Clearly, he intended that the bodies of the deceased be discovered by other persons, with him safely far away.

This conduct in my view, was not consistent with the actions of an innocent person.

While the motive for the killings was not clear, since the appellant only helped himself to a few items of property and possibly some money, there is no doubt the appellant shot the two deceased persons from close range. That he directed the shots at vulnerable parts of their bodies, that is their heads, can only suggest he intended to kill them. The absence of any sign of a struggle suggests the same.

By all accounts – even his own – the appellant was treated well by the deceased, indeed, better than many employers treat their domestic help. He was not only trusted but his services were also appreciated, as evidenced by the many favours extended to him. I doubt it ever crossed the Damons’ mind that the very gun they taught the appellant to use, would one day be turned on them.

The court a quo was therefore correct in its finding that there were no extenuating circumstances.

The conviction of and the sentence passed against, the appellant are in my view unassailable.

The appeal is without merit and it is accordingly dismissed.

CHIDYAUSIKU CJ: I agree.

ZIYAMBI JA: I agree.

Chitere, Chidavanyika & Partners, appellant's legal practitioners

Attorney-General’s Office, respondent's legal practitioners