THE State V Marcos Madhume AND Thomas MIKE Makoni Nyakujara

### Preamble
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HMT 10-18
CRB 03/18
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THE STATE

versus

MARCOS MADHUME

and

THOMAS MIKE MAKONI NYAKUJARA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 4, 5, 6 and 20 June 2018

Criminal Trial

ASSESORS:	1. Mr D Mudzinge

2. Dr A. Sana

M. Musarurwa, for the State

Ms J Chiname, for the 1st accused

V. Chinzamba, for the 2nd accused

MWAYERA J: The two accused appeared before the court facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is the State’s  contention that on 2 February 2017 and at Chikwangura Homestead, Kusena Village, Chief Marange, the accused persons one or both of them unlawfully and with intent to kill or realising that there was a real risk or possibility that their conducts may cause death and continued to engage in their conduct despite the risk or possibility, shot Blessing Chikwangura four times on the shoulder and once on the abdomen and once on the right side of the chest thereby causing severe injuries from which the said Blessing Chikwangura died. Both accused pleaded not guilty to the charge.

The first accused raised a defence of self-defence and intoxication. The first accused accepted having caused the death of the accused through negligence thus he was pleading guilty of culpable homicide. The latter limited plea, was not accepted by the State which insisted on the main charge of murder. The second accused pleaded not guilty to the charge and disassociated himself from the actions of the first accused although he admitted that he knew that the first accused person had a firearm in his possession. The second accused stated in his defence outline that they never agreed that the gun be used in the robbery and subsequent killing of the deceased.

The State adduced evidence from 13 witnesses. Evidence of 12 of the State witnesses was on common cause aspects and for some witnesses similar evidence. This evidence was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it appears in the summary of the State case. Only one witness Chiwoniso Sithole gave viva voce evidence in support of the State case. Both the accused were the only witnesses in their respective cases. As discerned from the summary of the state case, the accused persons proceeded to Kusena Village, Chief Marange on 2 February 2017. The accused are said to have approached the deceased’s residence and demanded cash and diamonds. The deceased did not give in to the demands prompting the first accused and second accused to break the window pane and door. The deceased still did not give in and this led to the first accused using a star pistol in his possession to fire shots on the deceased leading to the fatal consequence. The deceased’s body was examined by Dr Pesanai who compiled the post mortem report and concluded that death was due to haemorrhage shock due to multiple gunshot wounds. The post mortem report was tendered as exh 10. The State further adduced in evidence an affidavit statement by Dr B Magora as exh 1, photo album in respect of the deceased Blessing Chikwangura, exh 2 (a), photo album in respect of first accused Marcos Madhume making indications at the scene exh 3 (a),(b), (c), (d), (e) and (f), photo album in respect of second accused  Thomas Mike Makoni Nyakujara, exh 4 (a), (b), (c) and (d), sketch plan drawn by police per indication exh 5, indication statement by first accused, exh 6 and 7, indications by first and second accused, exh 8, confirmed warned and cautioned statement by first accused, exh 9, confirmed warned and cautioned statement by second accused, CID Forensic Ballistic Report exh 12 (a) and (b),, Fire Arm Certificate for Turk Mahomed Amm exh 11, star pistol serial no 14163 – 38mm and 2 x 9 spent cartridges cases exh 13 (a) and (b) respectively.

The State witness Chiwoniso Sithole in her oral evidence recounted how the two accused earlier in the day on the fateful day approached the homestead. She stated that the accused purchased some beer and consumed whilst at the witness’ and deceased’s home where the couple operated a shabeen. The witness walked the court through the events of the night when the accused who had earlier left came back and chased the deceased who had also just returned home. According to the witness the deceased called out that there were burglars and in a huff opened and immediately closed the door. The accused were not deterred as they broke a window and fired into the bedroom. The deceased still did not yield to the demand for money and diamonds leading the accused into breaking the dining room door and gaining entry. Whilst in the house the deceased did not give in and a struggle ensued. The first accused then fired at the deceased in succession. Upon the deceased exiting, the accused continued firing. When the accused went out after the deceased, the witness and her children escaped to seek for help. The witness told the court that upon her return she found out that the deceased had died and that US$3 000.00 and 1 tablet and Samsung phone were missing from the bedroom which had been ransacked. The witness’ evidence was generally straight forward given the common cause aspects as will shortly unfold. We must however, mention that there were same imperfections in the witnesses’ version of the type of beer sold and activities occurring at the homestead. All the other villagers, the deceased’s friends’ evidence admitted and made it clear that the deceased was a diamond buyer and a dealer and that they operated a shabeen. The witness sought to unconvincingly tell the court that she was not aware her husband was involved in diamonds for the obvious reason, this was illegal. She could have equally sold Mozambican whisky but because of the illegality that taints it, she sought to portray innocent sell of opaque beer, again at an unlicensed premises. Further the witness sought to underplay her husband’s role in face of all the other State witnesses’ evidence of there being evidence that the deceased tried to wade off the attack on himself with a machete. She buckled under cross examination and mentioned that maybe her husband had a machete because they had one outside the house.

Although there were shortcomings with the State witness Chiwoniso Sithole, the deceased’s wife, they do not cloud or affect the essential nature of evidence that is required for determination of this matter. This is moreso when one considers the totality of the State witnesses’ evidence and accused’s versions. It is worth mentioning that at the close of both State and defence case the facts of the matter became fairly common cause when both accused were probed by the State counsel. It was apparent the two accused agreed to kork the gun to threaten the deceased into surrendering diamonds and cash. It is common cause that the two accused who have been friends since childhood stole the star pistol tendered as exh 1 from one Mohammad in Marondera prior to undertaking a trip to Marange. Upon going to Marange, Chiadzwa diamond area both accused were aware that the pistol in the first accused’s possession was loaded. It is also not in dispute that prior to their arrival at deceased’s residence both the accused had voluntarily partaken alcohol. Further that at the deceased’s shabeen at the residence more alcohol was consumed. It is also not contentious that the accused agreed to rob money and diamonds from the deceased and agreed that if he resisted, the fire arm would be korked to induce him in to submission. In other words the accused agreed to use the firearm to execute their robbery plan. It is common cause that at 12 midnight the accused through violence executed their plan. They approached the deceased who fled into his house. The accused further in executing their plan broke a window pane to the bedroom and fired a shot demanding money and diamonds. The deceased did not give in so both accused broke the dining room door and gained entry. By then the deceased was armed with a machete to drive away the accused whom he called out were burglars. The first accused fired an avalanche of bullets towards the now deceased who finally left the house to escape but later died that night. It is further not contentious that when the deceased went outside to escape the wife and children also exited the house. It is also common cause that both the accused ransacked the house and stole a Samsung phone and tablet. The pistol and 2 spent cartridges were recovered and the accused were arrested. The fact that the issues in this case were largely undisputed was even more pronounced upon the filing of closing submissions by the State counsel for the first accused and second accused respectively. Of interest to note is the fact that the second accused who under cross examination had been exposed as having been part and parcel of the robbery excursion and that the duo had agreed to use the firearm to induce submission made a climb down on his defence. Further it was revealed second accused was there throughout the shooting and even assisted in breaking the door. He never, upon the first shot being fired remonstrated with first accused. After the shooting had ceased, they looked for the deceased and together they ransacked the house getting away forcefully with the deceased’s property. The defence counsel for the second accused in closing submission to a large extend agreed with the common cause aspects and articulated well  the legal position on the doctrine of common purpose and co-perpetrators. We will discuss the principles in due course but wish to mention that it emanated from the second accused’s closing submissions that the second accused departed from his initial stance of dissociation from accused’s action and adopted the first accused’s submission on the plea of culpable homicide.

The defence of self-defence raised by the second accused is provided for in s 253 of the Criminal Law (Codification and Reform) ACT [Chapter 9:23]. A reading of the section reveals that where requirements of the defence are met the defence is a complete defence. The requirement as discerned from the section are as follows:

There must be an unlawful attack.

The attack must be imminent or have commenced.

The conduct must have been necessary to avert the attack and one could not otherwise escape from the attack.

The means used to avert the attack must have been reasonable.

The harm directed to the attacker must not be grossly disproportionate to the harm that would have been received or occasioned.

From the evidence adduced which is obvious the accused approached the deceased at 12 midnight to rob him. To borrow the State counsel Mr Musarurwa’s language accused approached at “witch hour” with an unlawful motive to rob the deceased and they agreed to use the fire arm to induce fear and submission. They fired the first shot into the house after initially breaking a window pane. The deceased is the one who was clearly under unlawful attack. When he armed himself with a machete versus a star pistol it depicts clear naivety of rural folk but also depicts boldness in defending his property, family and self from the unlawful intruders. The deceased was justified to defend himself and in any event he used reasonable means in the circumstances. The first accused, who displayed a carefree attitude as he testified appeared unperturbed at all as he sought to educate the State counsel on what is happening at “Chiadzwa diamond area.” He on realising from the chain of questions, that he had no justification in relying on self-defence actually retorted that the deceased was justified in defending himself. Firing of multiple shots to facilitate a robbery can certainly not be mistaken for self-defence in circumstances of this case. In any event after the deceased exited his house and fled the accused fired from behind as evidenced by observations of injuries on the upper buttocks by the doctor. The requirements of self-defence in this case cannot be remotely met as it is the deceased who was under unlawful attack and acting in self-defence. The defence by the deceased was not disproportionate to the attack by two daring intrudes who broke a door and insisted that they wanted to get money and diamonds by firing a firearm at the deceased. Even after the couple had fled the accused ransacked the house and got away with cell phones. Such conduct by the accused cannot be attributed to negligence as the manner of shooting displays more than mere negligence.

The accused also sought to rely on intoxication. We must mention that from both accused’s mere say so during cross examination by the State counsel, they were both in control of their mental faculties. They had voluntarily partaken alcohol but still appreciated what was going on. After learning from one Mr Vambe and others that deceased had diamonds and money they formulated it was easier to rob for money and diamonds than risk dog bites, likely arrest and shooting by security personnel at the diamond field, if they went to the diamond field. Such high level of appreciation and making choices is not consistent with being intoxicated to the extent of negating intention. In any event the law is settled that voluntary intoxication is not a defence. It is our considered view the legislature sought to guard against pluckers of dutch courage to commit crimes hiding behind alcohol. The evidence from the accused and the events that occurred when they started with an aim to accomplish their mission shows men in control of their faculties.

The second accused, it is given did not pull the trigger. In his closing submission, it is admitted that the two agreed to rob the complainant. It also came out during cross examination of the second accused that they agreed to rob the now deceased using a firearm. The first shot was fired during his presence and the second accused did not do or say anything to dissociate himself from the act. He actually assisted in breaking the door when the deceased did not succumb to their demands. Several other shots were fired again second accused remained in attendance at some stage when he actually proceeded to check if there was no vehicle coming. When the deceased who had been mortally injured exited, both accused looked for him from the vehicle. Further both entered the house ransacked and got away with cell phones.

The evidence shows that the two accused who have been colleagues from childhood stole a firearm from Marondera together and proceeded to Marange with the firearm. Naturally it could not have been carried by both of them at the same time. They agreed to rob using the firearm and they committed the offence as co-perpetrators who were associates acting with a common purpose. Case law has defined extensively the doctrine of common purpose and co-perpetrators who associate for a common purpose. Section 196 A of the Criminal Law (Codification and Reform) Act is relevant and instructive on defining liability of co-perpetrators.

Section 196 A (2):

“The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing an offence, a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they

were present at or in the immediate vicinity of the scene of crime in circumstances which implicate them directly or indirectly in the commission or

were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged or

engaged in any criminal behaviour as a team or group, prior to the conduct which resulted in the crime for which they are charged or…”

In the case of Mlazo and Anor 1981 (2) SALR, it was clearly spelt out that armed robbers who attacked security guards in order to steal must have foreseen that the attack might lead to gun battle which would result in the guards or an innocent bystander for that matter being shot or killed. The fact that one of them fires a shot therefore does not remove the liability of the others who teamed up for purposes of prosecuting the unlawful enterprise. The case of Mlazo was quoted with approval in S v Chauke and Anor 2000 (3) ZLR 494 wherein the Honourable Judges of Appeal Sandura JA and Muchechetere JA dismissed the appeal by the appellants who among other things argued that the prison officer who was shot during the escape was shot by one who fired (my emphasis) the firearm and that it might have been another prison officer firing to prevent the escape. The Honourable Judges therein held that shooting fell within the common design of the group and  that the appellants ought to have foreseen  that anyone involved in escape could be killed in the cross fire. See also State v Woods and Anor 1993 (2) ZLR 258 where it was held that conspirators who had rendered significant assistance to the actual perpetrators of murder are guilty of murder if they were not at the scene.

In casu the two accused after having stolen a firearm, proceeded as a team to Marange Diamond area. On the fateful day, they hatched a plan to prosecute an unlawful enterprise of robbery and they agreed to use a firearm to induce submission. The pivotal role played by accused two of agreeing to use the firearm to facilitate the unlawful venture, breaking the window pane and door to gain entry, standing guard to watch if no one or car was approaching and ransacking the house of the deceased clearly shows significant involvement and team work in executing the unlawful enterprise. Common purpose as outlined by professor G Feltoe in his book A guide to Criminal Law in Zimbabwe 3rd ed at pp 43-47 states the legal position as follows:

“If X is an accomplice to Y in a criminal enterprise, X will be liable for crimes committed by Y which fall within their common design. X is liable because he participated in Y’s crime with the necessary mental state, that is, he participated knowingly or foreseeing that Y would commit the crime in question….”

As it happened in this case accused persons hatched a plan and agreed to rob the deceased using a firearm. They obviously could not have both pulled the trigger but one of them would pull the trigger. They agreed upon the prosecution of the unlawful enterprise to use a firearm so as to accomplish the unlawful enterprise. The two had a common purpose and were acting in concert to achieve the unlawful enterprise by using a firearm. The deceased came into their way by resisting the demands and the firearm as agreed was fired to facilitate the robbery. Naturally the use of a firearm which is a lethal weapon several times on a human being, death would be substantially certain, such that whoever fires liability would equally and squarely fall on the associate whose involvement is pronounced from initial planning stages to execution of the unlawful enterprise.

In this case the accused precisely agreed to rob the deceased and agreed to use a firearm to threaten him in to submission. The manner in which the two carried on, on the night in question revealed team work as co-perpetrators who shot at the deceased whom they had agreed to rob. In the circumstances of this case there is no basis of separation on liability given the association and team work in commission of the offence.

Having discounted the defence of self-defence as obviously not applicable given it is not available to a robber who is attacked by his victim as occurred in this case, see S v Ncube SC 58/14 and the defence of intoxication having fallen off, the court is left to decide whether or not the accused persons had the requisite intention to kill the deceased when they killed him. Phrased differently, the court is left to decide on the degree of liability of the co-perpetrators.

Intention was ably outlined in S v Mugwanda 2002 (1) ZLR 574 (S) at 581 D-E, when the Supreme Court held that:

“For the court to return a verdict of murder with actual intent, it must be satisfied beyond reasonable doubt either that;

The accused desired to bring about the death of his victim and succeeded in completing that purpose, or

That while pursuing another objective the accused foresaw the death of his victim as a substantially certain result of the actions and proceeded regardless.”

See also S v Mema HH 143/13. Actual intention is present when the accused sets out to cause the death of the deceased and where he foresaw that death was substantially certain to occur. In this case both the accused set out to rob the deceased using a lethal weapon, a firearm. The first accused fired the first shot during the presence and with the concurrence of second accused. There was no dissociation as both broke the door and while inside fired at the deceased demanding money and diamonds.

Multiple gunshots were fired at the deceased despite the obvious foresight of death of the victim and given the number of shots death was substantially certain. The manner in which the deceased carried on shows that death was substantially certain. The accused had the actual intention to kill as they persisted with the robbery in circumstances where death was a substantially certain result. Clearly the weapon used, the manner in which it was used and the multiplicity of the shots establish the accused had the requisite mens rea. The accused teamed up for purposes of robbing the deceased and indeed shot and killed the deceased in circumstances where death was substantially certain. The accused had the actual intention to kill the deceased.

Accordingly both accused are found guilty of murder with actual intention as defined in s 47 (1) (a) of the Criminal Law (Codification and Reform Act [Chapter 9:23].

Sentence

In assessing sentence we have considered all mitigatory and aggravatory factors submitted by Ms Chiname for first accused, Mr Chinzamba for second accused and Mr Musarurwa for the State respectively. It has been submitted both accused cooperated with the police and court hence the common cause factors that the deceased died as a result of gunshot wounds occasioned at the shooting by first accused. We have also taken note of both accused’s personal circumstances advanced by both defence counsels. Both accused are family men with fairly heavy responsibilities. It is a fact that the accused had partaken alcohol but they were in control of their faculties. In fact both planned to rob using a firearm whilst partaking of alcohol and then timed the time of attack at around 12 midnight. This brings about the element of partaking alcohol so as to pluck dutch courage to accomplish the desired result. In the circumstances of this case the voluntary intoxication cannot be viewed as mitigatory given the pre-planned commission of the offence. Even if one were to accept that intoxication falls under extenuation, the definition of extenuation circumstances should not be lost sight of. Extenuating circumstances are circumstances which reduce the moral blameworthiness of an accused and not the criminal liability. Extenuating circumstances when taken on board are not considered singularly but cumulatively. In the circumstances of this case the accused persons stand convicted of murder with actual intention and that on its own increases the moral blameworthiness. As correctly pointed out by Mr Musarurwa in aggravation is the lack of regard shown by both accused of the sanctity of life. The pre-planned attack against an unsuspecting deceased who had extended hospitality to the accused is abhorable. The deceased was fairly young. He left a young wife and dependants. The family will never have a father figure again. The deceased lost his life in circumstances where such could have been avoided had the accused respected the God given constitutionally enshrined right to life. The fatal attack on the deceased was an unprovoked attack and this further aggravates the offence. What further aggravates the offence is the fact that this was a team planned offence. The accused stand convicted of murder with actual intention. It is a fact they stole the firearm, proceeded to Marange for purposes of engaging in unlawful enterprise and executed the plan showing determination. Both accused were aware they had a loaded firearm. They naturally could not have both pulled the trigger but agreed to use the firearm in the furtherance of the criminal enterprise. The first accused pulled the trigger and at all times with second accused was in attendance and with no indication of dissociation. There is no basis and justification in treating the second accused separately and differently. The liability for teaming up and with actual intention causing the death of the deceased equally and squarely falls on the two accused persons. The manner in which the offence was committed further aggravates the offence. The accused in unrelenting manner ruthlessly and cruelly fired an avalanche of bullets in to the deceased even as he tried to make good his escape as evidenced by injuries on his back. Further, even after the fatal blow the accused were undeterred as they ransacked the deceased’s house and robbed a Samsung phone and tablet. Such callous and unrelenting behaviour ought to be visited with a corresponding punishment to deter not only accused persons but likeminded people. The gravity of the offence, the manner in which it was perpetrated by the duo who showed determination in achieving the unlawful enterprise calls for severe punishment. It shows the accused are a nuisance to society and this calls for their removal from the society. The accused persons both have no respect for the law as evidenced by their criminal record for robbery and unlawful entry as placed before the court by the State counsel.

Upon considering all mitigatory factors and aggravatory factors in this case, it is our considered view that the accused ought to be removed from circulation as they are a menace and danger to the general populace given their callous conduct which they depicted even in giving evidence in chief and during cross examination. They showed no degree of remorse as they were very casual and exhibited a carefree attitude in the face of such a serious offence. In passing sentence, the courts in applying sentencing principles seek to match the offender to the crime and balance the same to the societal interests of administration of justice. This is a matter where death penalty would have been warranted as they stand convicted of murder in aggravatory circumstances, that is murder during the course of armed robbery. However, given the need to blend justice with mercy we feel there is need for accused to reflect on their conduct and for such reflection to work in the positive manner it can only be achieved by imposition of a sentence other than death sentence. See S v Rirwa HH 579/17, S v Dube HB 120/17 also S v Shateyi HH 510/17.

It is on this back drop that we feel on appropriate sentence sending the right signal to society while at the same time pointing out that crime does not pay is life imprisonment.

Accordingly, the accused are each sentenced to life imprisonment.

National Prosecuting Authority, State’s legal practitioners

Bere Brothers, 1st accused’s legal practitioners

Mugadza Chinzamba & partners, 2nd accused’s legal practitioners