DISTRIBUTABLE 59
Judgment No. SC 63/07
Crim Appeal No. 119/06
MBEMBE
PORUSINGAZI v THE STATE
SUPREME COURT OF
ZIMBABWE
CHEDA JA, MALABA JA &
GARWE JA
HARARE, NOVEMBER 5,
2007 & JUNE 9, 2008
M S Sadomba, for
the appellant
C Mutangadura,
for the respondent
GARWE JA: The appellant appeared before the High Court at Masvingo
charged with the crime of murder. At the conclusion of the
trial the
court found the appellant guilty of murder with actual intent and,
finding that no circumstances of extenuation existed,
sentenced the
appellant to death. It is against that conviction and sentence that
the appellant has appealed to this Court.
The facts giving rise to the charge of murder before the court a
quo were to a large extent common cause. The appellant was part
of a group of four poachers who went to hunt game at Mkwasine Range
Chiredzi on 4 October 2001. The poachers were armed and accompanied
by dogs. The appellant in particular was armed with a bow
and arrow.
Shortly after their arrival at Arda Mkwasine Range they killed a
warthog and shared the meat. They continued with
their hunting until
they killed two more warthogs. The noise made by their dogs must
have attracted the attention of three Mkwasine
Range game scouts, who
included the deceased. The scouts came upon the poachers as they
shared the spoils. On seeing the game
scouts the poachers fled,
dropping the meat in the process. The game scouts gave chase. The
deceased who was armed with a rifle
led the chase. As he closed in
on one of the poachers by the name Davison Mangena (Davison)
Davison called out to the other
poachers for help. At that juncture
the other poachers, including the appellant (who was Davisons
uncle) stopped running and
turned back to rescue their colleague.
They advanced towards the game scouts. The appellant who was still
armed with a bow and
arrow ordered the deceased to drop his rifle.
The deceased did not do so but instead suggested that they discuss
the matter.
The appellant continued to advance towards the deceased.
At that stage Davison shouted to the appellant urging him to shoot.
The appellant again ordered the deceased to drop his rifle. The
rifle at that stage was lowered. The deceased did not drop his
rifle
but continued to urge that the two sides discuss the matter. The
appellant then pulled his bow and shot the deceased with
an arrow
hitting the latter on the left side of the rib cage. The deceased
and his colleagues ran away. The accused followed
the deceased and
ordered him to remove the arrow. The deceased did so and the
appellant picked it up. The deceased died shortly
thereafter.
According to the post mortem report, death was due to cardiac arrest
due to traumatic haemothorax on the left side
of the chest.
It was common cause during the trial that at no stage had the
deceased threatened the appellant or the other poachers and that
he
never pointed the rifle at the appellant at any stage.
The appellant has attacked the conviction on the basis that he
ought not to have been convicted of murder with actual intent
but
rather with constructive intent. On the question of sentence he has
submitted that if it is accepted that the murder was committed
with
constructive as opposed to actual intent then this constitutes an
extenuating circumstance which would warrant a sentence
other than
death. The issue before this court therefore is whether the High
Court was correct in finding firstly that the murder
was committed
with actual intent and secondly that there were no extenuating
circumstances in this case.
I will deal firstly with the question whether or not the killing
was perpetrated with actual intent. In his heads of argument
the
appellant submits that his intention was not to kill the deceased but
rather to scare him off. He believed he was shooting
to the side of
the deceased but accidentally shot him on the chest. He also
submitted that the deceased was struck by the arrow
as he attempted
to duck but instead ducked into the direction of its travel. In
other words the appellant is saying he did not
actually aim the arrow
at the deceased but to the side and that the deceased was struck as
he tried to evade the arrow.
In dealing with this aspect of the evidence the trial court
remarked -
Stuart gave his evidence well and is worth to be believed although
his evidence varies from that of the other state witness
and the
accused who told the court that the accused was about 20 to 25 metres
away. He said the distance between the accused and
the deceased was
about 3 metres. Whatever the distance was it was close enough to
allow the arrow to penetrate 10 centimetres
into the chest cavity and
penetrate into the lower lobe of left lung.
Muridzo Nyadzeni also told the court that the accused deliberately
aimed at the deceased. Mangena whose evidence was formerly
(sic)
admitted as it appears in the state outline said the accused shot the
arrow from the bow and it hit the accused.
Further, the accuseds story that he aimed at about a metre and
half away from the deceased is difficult to follow and it is
highly
improbable. Firstly, the accused himself had difficult in trying to
demonstrate to this court how the deceased went into
the path of the
travelling arrow which was about 1½ metres away. The accused
was simply being untruthful. His assertion
that the deceased went
into the path of the arrow as he tried to dodge it must be rejected
since it is false.
Similarly, his suggestion that he aimed at about 1½ metres
away from the deceased is also improbable as it is untrue. Here
is
why. The accused stopped running and returned when he heard Davison
Mangena calling out that he was about to be apprehended.
So the
accused and his colleagues decided to go and rescue Mangena. Quite
likely the accused and his colleagues relied on their
numerical
superiority and the fact that he and all his colleagues had weapons
while the game scouts had only one of them armed
with a rifle.
Quite clearly, the accused and his colleagues were going to fight in
order to rescue Mangena. That is why the accused described
the
encounter here in court as a contact. It is highly improbable
that the accused would aim a metre away from the deceased
in such
circumstances. Moreso when the deceased defied the accuseds order
to drop his rifle. Further, unless the accused had
more than one
arrow he would not have aimed a metre away from the deceased as that
would have left him with only a bow without
an arrow in the
circumstances of a contact.
The court therefore, rejects the assertion that the accused aimed
away from the deceased. The court finds that the accused indeed
in
fact aim (sic) at the deceased. The court has found that the
accused and his colleagues resolved to go and rescue Davison Mangena.
The accused
ordered the deceased twice to drop his rifle but because
the deceased did not do so, the accused decided to shoot at him with
an
arrow thereby killing him.
I find no basis upon which the trial court could be said to have
misdirected itself in coming to the above conclusion. The trial
court was impressed with the demeanour of the two witnesses and
behaved their evidence. Indeed the evidence reads well. There
is no
suggestion that either would have had any reason to lie.
However there is one aspect of the evidence to which little or no
regard has been paid. The aspect relates to the suggestion
that at
the time the deceased was struck by the arrow, he had turned in order
to run away.
The two witnesses who were called by the State were Muridzo
Nyadzeni one of the game scouts and Stuart Gungubo who was one of
the
four poachers. In describing the events surrounding the killing of
the deceased Muridzo Nyadzeni gave the impression that
the deceased
was struck as he turned to run away. The following exchange took
place between the prosecutor and the witness during
evidence in
chief:
Q. Mr Nyadzeni I just want you to explain
to the court before
you heard the
accused saying
remove that arrow what
had happened
The
deceased suggested to the accused person they should talk. That is
when the deceased was shot and that is also was the time
when the
deceased turned as he was running away and at that time the accused
person called him to remove the arrow and he removed
it and ran away
.
Later the following exchange took place:
Q. Yes.
A. At the time the accused person was telling the deceased to
put his gun down he had
his arrow
drawn.
Q. Yes.
A. And the deceased was turning that is when he was shot on the
rib side (witness indicates)
the
left side of the rib side.
Thereafter the following exchange took place between the witness and
the trial Judge:
Q. So the deceased was shot
when he was turning to run away.
Yes
my lord.
Q. Why were you people running
away. You have got a gun. These are armed
with arrows.
Why were you running.
A. We had one gun.
In answer to a further question by the court he stated as follows:
Yes that is when he was telling the poachers that we should
discuss as he was turning as the accused person and his colleagues
had their bows drawn.
Immediately thereafter the witness made the following statement
under cross examination:
(inaudible) that at the time the deceased surrounded by the
accused and his colleagues
(inaudible) their arrows to us.
As
the deceased was turning he was shot.
Mr Stuart Gungubohowever seemed to have a somewhat different
version. The following exchange took place when he was cross
examined
Q. So when all this was happening you could also
view the other game scouts
whom you say were a distance away.
A. Yes I could see the two of them. What happened is that the
deceased is the one
who left his other colleagues and pursued us and when his colleagues
noticed
that he had been surrounded they were then afraid to draw close.
When asked whether the appellant had aimed the arrow to the side of
the deceased the witness responded:
He wanted to shoot. If it was that he intended to shoot on the
side he would have aimed away from the deceased but in this
instance
he aimed at the deceased.
Earlier the witness had made the following statement:
As they were surrounding that man the accused person then called
out game scouts or the deceased to put down his gun. He made
that
order for the second time. Davison then said shoot, shoot, shoot.
Deceased said wait let us talk. The accused then pulled
his bow and
shot the deceased on the rib side.
The witness had then continued:
The accused person had then said remove my arrow. The deceased
removed the arrow. He was told to throw down the arrow. After
throwing the arrow down the deceased made a loud groan and at that
point accused person picked his arrow. When the other two game
scouts realised that their colleague had been stabbed they started to
run away. That is when the deceased turned and he started
to run as
he was asking his colleagues to wait for him
.
The trial Judge was impressed with the evidence of the two state
witnesses. He believed them. Whilst it is apparent that the
portion
of the evidence to which reference has just been made was not
considered by the trial court, I have no difficulty with
the finding
by the trial Judge that the witnesses in general gave their evidence
well. The trial Judge was correct when he remarked
that Muridzo
Nyadzeni had told the court that the accused had deliberately aimed
at the deceased. However Nyadzeni went further
and told the court
that the deceased was struck as he turned to run away.
The evidence led before the court a quo established the
following. The game scouts including the deceased pursued the
poachers. The deceased, who was armed with a rifle,
outran his
colleagues. As he closed in on one of the poachers called Davison
the latter called out to the other poachers for assistance.
The
other poachers then returned and surrounded the deceased, with their
bows and arrows ready. The appellant ordered the deceased
to put
down his rifle. The deceased suggested they talk. In the meantime
Davison shouted to the appellant to shoot. The appellant
again
ordered the deceased to drop his rifle. The deceased did not do so
but instead urged dialogue. It was then the appellant
shot at the
deceased who then turned and started running away.
It was not in dispute during the trial that the appellant was an
experienced hunter. He shot at the deceased or at the very
least in
his direction. The appellants story that he aimed to the side
was rejected by the trial court. I find no reason
for disagreeing
with that conclusion.
The appellant must have aimed at the deceased and shot him with the
arrow. That he aimed to the side would, even if such a version
were
to be accepted, not absolve him. As stated in S v Du Preez
1972 (4) SA 584, 589 D E:
To shoot with a pistol in the direction of a moving human being
leaving so small a margin of safety may indeed fairly be described
as
reckless conduct.
Whether the appellant was reckless or not does not arise in this
case in view of the finding by the trial court, which finding
I agree
with, that the appellant aimed his arrow at the deceased and then
shot him with it.
I am satisfied that the appellant must at the very least have
foreseen the possibility of killing the deceased as having been
substantially certain. In the circumstances the trial court was, in
my view, correct in coming to the conclusion that the appellant
was
guilty of murder with actual intent.
On the question of extenuating circumstances, it has been argued on
behalf of the appellant that the killing was not premeditated
and
that it occurred on the spur of the moment. The trial court found
that the attack was pre-planned because the appellant and
his
colleagues returned to confront the deceased and his workmates. On
these facts the trial court was wrong in concluding that
the offence
was premeditated. Premeditation is the:
previous deliberation upon or thinking out of something to be done
or
The action of thinking of or considering something before hand or
previously - The Oxford English Dictionary p 1279-80.
Clearly what happened in the present case had not been previously
deliberated upon. It happened in the heat of the moment after
the
game scouts came across the poachers and pursued them in order to
apprehend them.
The fact that this was not pre-planned does not, on its own, amount
to an extenuating circumstance. The appellant aimed his arrow
at the
deceased and deliberately shot at him. He must have appreciated the
consequences of his action at this stage. There is
nothing to reduce
his moral blameworthiness on the day in question. The conclusion by
the trial court that there were no extenuating
circumstances cannot
be faulted.
The appeal must therefore fail.
Accordingly the appeal against both conviction and sentence is
dismissed.
CHEDA JA: I agree
MALABA JA: I agree
Pro deo
