HIGH COURT OF ZIMBAMBWE
UCHENA J, SITTING WITH MESSERS CHIDYAUSIKU AND BARWA
HARARE, 3, 4, 15, 16, 17, 18, 29, March, and 18 June 2010
F Nyahunzvi, for the State
C Mutandwaand Mr Matsika, for the Accused.
UCHENA J: The first and second accused pleaded not guilty to a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The state, alleged, that they, murdered the deceased on 18 November 2008. The deceased was their paternal grandfather. They were staying with him in Mhondoro. Their father had died, and their mother stays in Epworth in Harare.
The accused persons were charged with murder. The state alleged that they planed to eliminate the deceased. Accused one armed himself with a knob-kerry and went to where the deceased was sleeping in the verandah. He while accused two stood guard struck the deceased twice on the head.
Accused one’s defence is that he acted in self defence when the deceased had cornered him in a corridor. He said the deceased was armed with a raised spear. He struck the spear from the deceased’s hand. The deceased remained standing in the corridor blocking his escape route. He then struck the deceased once on the head to create an escape route, and escaped. He thereafter send accused two, to go and see the injury he had caused. Accused two made a report to him and they together went to see the deceased’s injuries after which they devised a plan to allege that thieves had invaded the homestead and injured the deceased.
Accused two’s defence is that he did not participate in the struggle between accused one and the deceased. He said the deceased came to their room before 04.00 am, looking for accused one. He was armed with a spear. Accused one was not in the room having gone to attend a traditional ceremony in the village. He reported this to accused one when he came back at 04.00 am. Accused one then said maybe the deceased had come because they had delayed in going to plough the fields. Accused one went to collect cattle harnessing equipment. He there met the deceased, and came back and told him that he had struck the deceased with a stick. He asked him to go and observe the deceased’s condition. He did and brought a report to accused one. He later went back to the deceased with accused one, after which they connived to allege that thieves had invaded the home, so they could blame the deceased’s injury on the thieves.
Evidence was led by the state and the accused persons. There were no independent eye witness’s to the murder. The State relied on the evidence of Elizabeth Chanengeta, and the accused person’s confirmed warned and cautioned statements. Elizabeth was the deceased’s wife, and is the accused’s grandmother. She was asleep when the incident took place. She was woken up by the accused persons after the deceased had already sustained the injury which caused his death. Her evidence is therefore merely, on what she witnessed after the fatal blow had been delivered. The postmortem report does not support the delivery of two blows as alleged in the state outline. It confirms accused one’s evidence that he struck the deceased once on the head, to create an escape route. The deceased had cornered him in a corridor. Accused one’s warned and cautioned statement refers to his delivering two blows. Accused one however explained it by saying the first blow was to the spear and the second to the deceased’s head. We accept that explanation as it is supported by Medical evidence. The probabilities favour the accused person’s explanation. If the accused persons had planed the murder, as alleged by the state they would have killed the deceased who lay helpless in the corridor, before calling out, that, thieves had invaded the homestead. Why would they risk his surviving to narrate what had happened. We are convinced the deceased was injured in the circumstances narrated by the accused persons.
After the determination of the above the following facts became common cause. The accused persons are the deceased’s grand children. They stayed with him and his wife in Mhondoro. They are the deceased’s, late son’s children. Their father died leaving them in the custody of their paternal grand parents. Their mother stayed in Epworth with their two siblings.
The accused persons were not happy with their living conditions. Their grandfather the deceased used to wake them up before dawn to go and plough fields. That according to their mother was his way of life even during the period she stayed with him as a daughter in law.
On the fateful night, accused one attended a traditional ceremony, and came back home at 04.00 am. He received a report from accused two that the deceased had been looking for him and that he was carrying a spear. He assumed that the deceased wanted them to harness cattle and go to the fields to plough. He went to get cattle harnessing tools from where they are kept. He carried a T shaped curved stick he said they used whenever they go to the fields to plough. He entered a corridor from which he was to access the room where the harnessing tools were kept.
While he was in that corridor, he saw the deceased coming from behind, armed with a raised spear. The first accused struck the spear with the stick he was carrying, and it fell down. The deceased then stood in the passage unarmed. The first accused struck him on the head with the stick. The deceased fell to the ground. The first accused went back to their room and told accused two what he had done. He send, accused two to go and see the deceased’s condition. Accused two came back and reported that the deceased condition’s was serious. They went back to the scene, saw the deceased’s condition and agreed to report to their grandmother that thieves had invaded the homestead so that they would blame the deceased’s injuries on the alleged thieves.
They gave chase, to the imaginary thieves, until, their grant mother called them back fearing that they would be injured. They came back and took their grandmother to where the deceased was. They saw that his condition was critical. The news of the incident started spreading in the village. As people gathered at the homestead, the accused persons agreed to hide the stick accused one had used. Accused two threw it into a blair toilet.
Arrangements were made to take the deceased to a clinic. The clinic could not attend to him due to the seriousness of the injuries. They later attempted to take him to the district hospital but he died on the way.
The police came while accused one, and others were taking the deceased to hospital. Accused two who was at home, told them that the deceased had been attacked by thieves. They went back to their station and came back, after the deceased had died and his body had been brought back home. Accused two, again told them that deceased had been attacked by thieves. They took him to the Police station where after further questioning he owned up and told them the truth that deceased had been struck on the head by accused one.
Accused one was arrested. The accused persons recorded warned and cautioned statements in which they told the police that accused one had struck the deceased in the circumstances explained in accused one’s statement.
At the time of deceased’s death accused one was no longer going to school. The parties are not agreed as to whether or not accused two was still going to school. It is however common cause that he had previously been taken by his mother, to Harare, where he attended a school, she had secured for him. He however ran away from that school and walked from Harare to Mhondoro on foot. He chose not to go back to his mother’s house in Epworth. This demonstrates the second accused’s preference as to where he wanted to stay, despite the deceased’s demand of hard work from the accused persons.
There are minor differences between the State’s and defence evidence. These are on peripheral issues and do not contribute to the determination of the question whether or not the accused persons are guilty of the offence charged.
It is apparent from the common cause evidence that accused one is raising the defence of defence of person as provided in s 253 of the Code. Section 253 of the Code provides as follows;
“(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if
(a) when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and
(b) his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she, believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack, and
(c) the means he or she used to avert the unlawful attack were reasonable in all the circumstances; and
(d) any harm or injury caused by his or her conduct
(i) was caused to the attacker and not to any innocent third party; and
(ii) was not grossly disproportionate to that liable to be caused by the unlawful attack.
(2) In determining whether or not the requirements specified in subsection (1) have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.”
Self defence or defence of person can be a complete defence if all the requirements set out in subsections (1) (a to d), are satisfied. The first accused’s uncontroveted evidence established that he on the fateful night came from a traditional ceremony at 4.00 am. He received a report that the deceased was looking for him and was armed with a spear. He believed that the deceased wanted him and his young brother accused two to go and plough as was the norm at the deceased’s home. He took a stick he said they normally use when they go to the fields to plough. He proceeded to the room where cattle harnessing tools were kept. While he was in a corridor leading to that room he saw the deceased behind him armed with a spear. The spear was raised up ready to attack. He struck the spear with his stick. It fell to the floor, but the deceased remained standing in the corridor blocking his escape route. He struck the deceased once on the head. The deceased fell down and the first accused escaped. He went to their room where he instructed accused two to go and check on the deceased’s condition. The second accused told him that the deceased had been seriously injured. They went to the scene together and later devised a plan to divert attention from accused one by alleging that thieves had invaded the homestead.
When these facts are applied to s 253 of the code, it becomes clear that;
The first accused reacted to an unlawful attack, which was imminent. The deceased held a raised spear in his hand.
The first accused’s conduct in striking the spear was necessary to disarm the deceased. He had no other means of escaping from the raised spear. He then struck the deceased once on the head. He said the deceased was blocking his escape route. He had received a report that the deceased was looking for him armed with a spear. Mr Nyahunzvi for the State argued that once the spear was on the floor the first accused should have simply run past the deceased or pushed him aside as he was a 79 year old man. Mr Mutandwa for the accused submitted that the first accused was acting under stressful conditions. He feared the deceased would pick the spear and use it to stab him. The question which arises is whether the first accused believed on reasonable grounds that his conduct was necessary to avert the unlawful attack and that he could not otherwise escape from, or avert the attack. The history of the deceased and accused’s relationship comes into play. The first accused in his evidence said the deceased was a violent man who did not hesitate using any weapon at hand. The accused’s grand mother indirectly confirmed this when she confirmed an incident in which the deceased chased away the accused person’s mother with a spear when she come to pay her condolences to her in-laws on the death of her husband. The accused persons’ mother confirmed the incident. There was also the issue of the birth certificate the first accused had asked the deceased about resulting in his being threatened with being stabbed with a spear. In my view the first accused must have reasonably believed that striking the deceased was a necessary means of escaping from the deceased’s imminent attack. He said he feared the deceased would pick up the spear and use it on him. The accused’s reasoning is supported by the fact that he struck the deceased once, and ran away. The postmortem report confirms that only one blow was delivered. If his intention was to kill the deceased he would have delivered further blows. The fact that he did not confirms that he merely wanted to clear his escape route. He there-after send accused two to check on the deceased, and subsequently came back to the scene with him. He did not use these opportunities to inflict further injuries on the deceased. This proves the first accused merely wanted to escape from the corridor where he believed the deceased had cornered him.
The fact that the first accused struck the deceased once, and escaped from the corridor confirms that the means he used to avert the unlawful attack was reasonable in all the circumstances. The fact that he merely wanted to escape is demonstrated by his not inflicting further harm when he had the opportunity to do so.
The deceased was armed with a spear. The first accused was armed with a stick. It is obvious that the deceased’s weapon was more dangerous than the first accused’s. When he struck the spear down he did not decide to pick it and use it, though he feared the deceased would pick it and use it on him. His striking the deceased with the stick is in the circumstances, not grossly disproportionate to the harm that could have been caused by the deceased’s unlawful attack with a spear.
In determining whether or not the requirements specified in subsection (1) have been satisfied, I have considered the relationship between the deceased and the first accused. They did not enjoy a good relationship as explained above. The deceased used to display aggression towards the accused. The accused found himself having to go and harness cattle at 4.00 am, because the deceased was looking for him with a spear. As he went to collect the harnessing tools the deceased followed him from behind with a raised spear. That must have caused the first accused to extremely fear for his life. He was as a result of the history already narrated a child living under stressful circumstances. He feared the deceased and must have been spurred by his knowledge of the deceased to act in the manner he did. It would be taking an arm-chair approach, to expect him to have reacted other than he did. He acted in the spur of the moment. He did not have time to rationalize things, as one would in the comfort of a courtroom or a judge’s chambers. I would in the circumstances find that the first accused acted in circumstances where self defence should be accepted as a complete defence to the charge he is facing”.
My view that the first accused is entitled to a complete defence is strengthened by the provisions of s 255 of the Code, which provides as follows;
“If a person genuinely and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence in terms of this Part to any criminal charge in all respects as if his or her belief were in fact correct”.
This means even if the first accused genuinely, on the reasonable grounds explained above, but mistakenly, believed that the deceased would pick up the spear and stab him, he would still be entitled to a complete defence. The mistake would be genuine in view of it being made by a juvenile, in a moment of fear, in the absence of time within which he could nicely weigh the pros and cones of the action he was to take. Section 255 applies to any criminal charge, and therefore includes a charge of murder.
The first accused is therefore found not guilty and is acquitted.
Accused two did not as alleged by the state participate in the delivering of the blow which caused the deceased’s death. He should not have been charged as an actual perpetrator but as an accessory after the fact. He therefore cannot be convicted on the charge of murder as he only took part after the fatal blow had been delivered. Mr Mutandwa for the accused submitted that the accused cannot be convicted of murder, as he only assisted after the fatal blow had been delivered and before the deceased had died. He submitted that accused two’s case must be treated as that of an accessory after the fact. He relied on the case of S v Mungati & Another 1999 (2) ZLR 1 (H) at page3 A-B, where CHINHENGO J said;
“An accessory after the fact is one who, after the crime has been completed, aids or abets the principal perpetrator by conduct which deprives the owner of his rights. An accessory after the fact cannot be convicted of the principal offence on a charge of murder- See R v Mlooi & Ors 1925 AD 131.”
Mr Nyahunvi for the State conceded that accused two cannot be convicted of murder, as he assisted accused one after the fatal blow had been delivered. He however submitted that he should be convicted as an accessory after the fact to the crime of murder as he gave false information to the Police after the deceased had died.
The determination of criminal trials after the codification of our criminal law must be based on the provisions of the Code. The former common law positions, as pronounced through case law must yield to the provisions of the Code, if there is a difference, between, the precedents created by case law and the clear provisions of the Code. Where the Code, modifies Roman Dutch law, its provisions must be followed. Case law based on Roman Dutch law, before its modification, by the Code, can only be followed to, the extend, relevant to the provisions of the Code. In other circumstances it can only be used as a guide in interpreting the provisions of the Code. Section 3 of the Code provides as follows;
“(1) The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on 10 June, 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law.
(2) Subsection (1) shall not prevent a court, when interpreting any provision of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of
(a) the criminal law referred to in subsection (1); or
(b) the criminal law that is or was in force in any country other than Zimbabwe”.
In this case, I will analyse the two situations from which the liability of accused two can be determined. These are, what he did, after the first accused had struck the fatal blow, but before the deceased died, and what he did after the deceased had died.
Accused two’s acts before the deceased died
Accused two assisted the first accused after the fatal blow had been delivered. He can if the facts of this case proves it be convicted of assisting the first accused as provided in s 273 (b) of the Code. Section 273 provides as follows;
“A person charged with any crime may be found guilty of
(a) ---------- or
(b) assisting a perpetrator of that crime or of any other crime of which the person might be convicted on the charge; if such are the facts proved.”
An accused, who assists the actual perpetrator after the commission of the offence is in terms of s 206 of the Code an assessory after the fact In this case, accused two rendered assistance, after accused one had delivered the fatal blow but, before the deceased had died. He, when the deceased was still alive lied to their grandmother and the Police that the deceased had been attacked by thieves. He, when the deceased was still alive, hid in a toilet, the stick accused one had used to attack the deceased. For one to be an assessory after the fact to any crime he or she must have acted in a manner that conceals the crime committed by the actual perpetrator or helped the actual perpetrator to evade justice. When the second accused acted as described above there was no murder to be concealed. Section 206 of the Code provides as follows;
“Any person, other than an actual perpetrator of a crime, who
(a) knowing that an actual perpetrator has committed a crime; or
(b) realising that there is a real risk or possibility that an actual perpetrator has committed a crime; renders to the actual perpetrator or to any accomplice of the actual perpetrator any assistance which enables the actual perpetrator or accomplice to conceal the crime or to evade justice or which in any other way associates the person rendering the assistance with the crime after it has been committed, shall be guilty of being an accessory to the crime concerned.”
The elements of the crime of being an assessory after the fact are therefore;
knowledge that the actual perpetrator has committed a crime, or the realization that there is a real risk or possibility that the actual perpetrator has committed a crime, and
rendering the actual perpetrator or his accomplice assistance which enables him to conceal the crime or to evade justice, and
the assistance must be rendered after the crime has been committed.
In this case the second accused rendered the abovementioned assistance to the first accused before the deceased died. He can not therefore be found guilty of being an assessory after the fact to the crime of murder, which had not been committed when he rendered the abovementioned assistance.
It is however obvious that when he rendered assistance to accused one, he was aware, and had realized, that accused one had committed a crime. He might not have known exactly what crime had been committed, but that does not matter. In terms of s 207 (1) (b) of the Code
“(1) A person may be found guilty as an accessory to a crime even if
(b) the person is only aware of the fact that the conduct of the actual perpetrator is unlawful but unaware of the nature of the crime committed by the actual perpetrator or the manner in which it was committed; or”
This means in an appropriate case the accused, can be convicted as an assessory after the fact, of the crime which had been committed at the time he rendered assistance even if at the time of rendering assistance he did not know what crime had been committed. He must however believe that a crime has been committed, and with that knowledge render assistance to conceal it, or help the actual perpetrator to evade justice. In this case accused one had delivered the fatal blow when accused two rendered assistance. He was, send, to observe the deceased’s injuries. He went back to accused one and reported, the seriousness, of the injuries he saw. He then went back to the scene with accused one and again saw the injuries accused one had inflicted on the deceased. It was after this that they agreed to allege that thieves had invaded the homestead to divert attention from accused one. Accused two, later hid the stick accused one had used, in a blair toilet. An offence had been committed, and accused two should be convicted as an accessory after the fact of it, if that offence is a competent verdict to the crime of murder.
In terms of s 47 of the fourth schedule to the Code, infanticide, culpable homicide, or any crime of which a person might be convicted if he or she were charged with a crime of infanticide or culpable homicide, are permissible verdicts to a charge of murder. Infanticide is obviously not relevant in this case. It is only culpable homicide and its competent verdicts which, calls for consideration. Accused two cannot be convicted of culpable homicide as death had not occurred when he rendered the abovementioned assistance to accused one. In terms of s 49 (e) of the fourth schedule to the Code assault is a competent verdict to a charge of culpable homicide. An assault had clearly taken place when the second accused rendered assistance to accused one. The second accused could therefore have been found guilty of assault if he had not done anything after the deceased’s death.
Accused two’s acts after deceased’s death
In this case accused two gave false information to the Police about what had caused the deceased’s death. He told them that the deceased’s death was a result of injuries inflicted on him by thieves who had invaded their homestead This was after the deceased had died on the way to hospital and his body had been brought back to the homestead. He while still at the homestead told the police that the deceased had been attacked by thieves who invaded the homestead. He was taken to the Police station where he continued to give the Police false information. He only owned up after further questioning. In his own words he said he told the police the truth after they quizzed him. He was then clearly concealing the murder which, he believed, had been committed by accused one. In terms of s 208 (d) of the Code giving false information to a Police officer, or other person in authority, concerning the circumstances of a crime, renders the giver of false information an assessory to the crime. Section 208 (d) provides as follows;
“Without limiting the expression, any of the following forms of assistance, when given to an actual perpetrator of a crime, shall render a person liable as an accessory to the crime in terms of this Part
(d) giving false information to a police officer or other person in authority concerning the circumstances of the crime or the whereabouts of the actual perpetrator”.
The second accused gave false information to Police officers, whom he knew were investigating the cause of the deceased’s death. He deliberately gave them false information to conceal the true circumstances of the crime. He must therefore be found guilty of being an accessory after the fact to the crime of murder.
Effect of Accused One’s Acquittal on Accused Two’s case
It sounds illogical that accused two, who merely assisted accused one whose acts caused the deceased’s death, should remain in the latch. This is however not accidental. The Legislature foresaw it and intended it. Section 207 (1) and (2) of the Code provides for such a situation as follows;
“(1) A person may be found guilty as an accessory to a crime even if
(a) the person lacks capacity to commit the crime committed by the actual perpetrator; or
(b) the person is only aware of the fact that the conduct of the actual perpetrator is unlawful but unaware of the nature of the crime committed by the actual perpetrator or the manner in which it was committed; or”
(c) the actual perpetrator is unaware of any assistance rendered by the person; or
(d) the assistance the person renders does not in fact enable the actual perpetrator to conceal the crime or to evade justice.
(2) Where a person renders assistance to another person in circumstances which would make him or her guilty as an accessory to a crime, but for the fact that the person to whom he or she renders assistance is entitled to rely upon a defence which excuses that other person from liability or reduces that other person’s liability for the crime concerned
(a) the first-mentioned person shall be guilty as an accessory to a crime as if the person to whom he or she renders assistance were an actual perpetrator; and
(b) the first-mentioned person shall not be entitled to rely upon that defence unless he or she would be entitled to rely upon it if he himself or she herself were charged as an actual perpetrator of the crime concerned”.
The legislature in s 207 (1) (a) to (d) intended to attach liability to an accessory after the fact even if;
he or she lacked, capacity to commit the offence committed by the actual perpetrator, or
he or she does not know what offence the actual perpetrator had committed, but is only aware that the actual perpetrator’s conduct is unlawful, or
the actual perpetrator is not aware that the accessory rendered him or her
the assistance rendered does not conceal the actual perpetrator’s crime or help him or her to evade justice.
It is clear that the legislature intended to punish any conduct that helps actual perpetrators to conceal their crimes, or to evade justice. In short even an unsuccessful attempt, should attach liability.
In s 207 (2), the Legislature, goes further to provide, that the accessory will be guilty even if the actual perpetrator raises a defence which entitles him to an acquittal. That means, an accessory after the fact will, remain in the latch when the actual perpetrator escapes liability. The accessory’s ability to escape through the same defence is restricted by s 207 (2) (b), which provides that the accessory can only rely on the same defence, “if he would be entitled to rely on it if he himself were charged as an actual perpetrator of the crime concerned”.
In this case the second accused could only rely on the defence of self defence, or defence of accused one if he himself had been under attack, or accused one had been under attack in his presence. Accused two was not at the scene where accused one was under the deceased’s unlawful attack. He cannot therefore rely on the defence which entitled accused one to be acquitted. The requirements of that defence do not apply to his case. He was personally never under an imminent unlawful attack from the deceased. Accused one whom he could have acted in defence of was on his own when he fell under the deceased’s unlawful attack. Accused two only heard of the deceased’s unlawful attack from accused one long after it had ceased. He could therefore not have acted against the deceased and claimed the defence of defence of person. If for example accused two had on being send by accused one to check on deceased’s injuries, had attacked deceased because he had, had a scuffle with his brother accused one, that would not have been an act in defence of person but one of revenge. The defence of defence of person can not be applied in retrospect. It is therefore not available to accused two. The defence of defence of person can in fact not be raised against his giving false information to the police.
Accused two’s liability for assisting accused one to conceal the cause of the deceased’s death and to evade justice can therefore not be avoided. The evasion of justice occurs even in a case where the actual perpetrator would if charged be able to, raise a defence which entitles him to an acquittal. Justice, involves the investigation, trial and determination of a case. Preventing any of these by giving false information to the police or person in authority to conceal the act, or prevent its investigation, trial and determination is an act aimed at evading justice. The second accused persistently gave false information to police officers who were investigating the deceased’s death.
He is therefore found guilty as an accessory to the crime of murder.
Attorney- General’s Criminal Division, legal practitioners for the State
Justice for Children Legal Practitioners, for the Accused.