Casper Chihota v The State

### Preamble
Judgment No. SC 124/22
1
Civil Appeal No. SC 228/16
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REPORTABLE (109)

CASPER     CHIHOTA

v

THE     STATE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA & KUDYA JA

HARARE: 3 OCTOBER 2022 & 17 NOVEMBER 2022

K. Kadzere, for the appellant

E. Makoto, for the respondent

MATHONSI JA:	The appellant’s twelve year old niece died a painful and defining death on 18 June 2011, the victim of a callous rape and strangulation.  The appellant was later charged of her murder and by judgment delivered on 25 February 2015, the High Court (“the court a quo”) found the appellant guilty and sentenced him to death.  This is an automatic appeal against both conviction and sentence.

The court finds that the evidence against the appellant, though almost entirely circumstantial in nature, was overwhelming.  He was properly convicted and in imposing capital punishment the court a quo properly exercised its sentencing discretion having regard to the fact that the murder was committed in extremely aggravating circumstances.  The deceased was subjected to excruciating pain and torture while being raped before being viciously strangled.

The deceased died of asphyxia due to strangulation before her body was tied to a tree while in a sitting position.  From evidence placed before the court a quo, the only inference to be drawn is that it is the appellant who murdered the deceased.  The proved facts exclude every reasonable inference that can be drawn save that the appellant is the culprit.

THE FACTS

The deceased, Pamhidzai Chihota, was the twelve year old daughter of the then ailing Chihota Chihota, who, at the time of the trial had succumbed  to his ailment.  The appellant is the younger brother of Chihota Chihota and therefore the paternal uncle of the deceased.  They all lived together at Riverhead farm in Banket.

The state case was that on the afternoon of 18 June 2011 the deceased and her two younger sisters, Idah and Matipedza, were at home together with their father and the appellant.  The appellant sent the three girls, ostensibly on an errand to buy milk at Collin Gandiwa’s homestead in the same neighbourhood.  No sooner had the children set out to Gandiwa’s homestead than the appellant followed them cycling.

He caught up with them at a bridge along Preston Road and immediately isolated the deceased by instructing her to proceed to the nearby vegetable gardens to fetch some vegetables.  He instructed the two younger sisters to continue on their trip to Gandiwa’s homestead, making sure they did so by escorting them for a short distance.

After separating the children, the appellant lured the deceased to a nearby bush, forced her to the ground, raped her and violently grabbed her by the neck strangling her to death.  Upon realising that the deceased had died, the appellant took a thin tree bark and tied it around her neck before tying the body to a small tree or shrub while it was in a sitting position presumably to simulate suicide by hanging, except that there was no hanging to talk about.

The body of the deceased was discovered the following day after a protracted search by her family and other community members.  It was conveyed to Parirenyatwa Hospital in Harare for examination.  The medical examination revealed that she was raped before being strangled and died of asphyxia due to strangulation.

Following his arrest, the appellant was charged with the crime of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  He gave a warned and cautioned statement to the police in which he admitted forcibly having sexual intercourse with the deceased and also tightly grabbing her by the throat.

PROCEEDINGS BEFORE THE COURT A QUO

The appellant was indicted for trial before the court a quo on the aforesaid charge.  He pleaded not guilty to the charge.  Despite having previously made a confession, in his defence outline the appellant recanted the confession denying ever sending the children on an errand.  His story was that on the day in question he decided to go to a place called Kamburiya and agreed with his brother Chihota Chihota that he would pass through Preston Road to check on the children who had gone to Gandiwa’s homestead.

According to the appellant, he was walking along Preston Road in the company of his girlfriend called Maidei when he saw Idah and Matipedza by the bridge.  The deceased was not with them and when he inquired about her whereabouts the two younger girls informed him that she had gone into the garden to collect vegetables.  He went on to say that he called the deceased’s name but got no response.  He only saw some vegetables discarded at the gate to the garden.  Although he searched for the deceased at the time, he did not find her.

At the trial the state led evidence from five witnesses namely Idah Chihota, the deceased’s young sister, Anna Tembo, the appellant’s mother, Lovemore Chengeta, a community watchman attached to Glen Esk Police Base who was in the search team that discovered the deceased’s body; James Bopoto, a community member to whom the appellant handed himself over before his arrest; Detective Constable Langton Chinamano who took photographs of the crime scene and the autopsy proceedings and Design Tsikayi, the investigating officer.

The rest of the evidence of the state was admitted as summarised in the state outline in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].  Only the appellant testified for the defence.  By far the most critical witness was Idah Chihota, the deceased’s ten year old sister who was in the company of the deceased immediately before she died.

The court a quo was impressed by her testimony and found her, to be a credible witness.  It found that the appellant did indeed follow the three girls on their way to buy milk and that he isolated the deceased by directing her to fetch vegetables.  The court a quo found further that upon Idah and her younger sister’s return from Gandiwa’s homestead, they passed by the vegetable gardens and called out the deceased’s name only for the appellant to respond before emerging claiming to be looking for the deceased.  The appellant then instructed the two remaining girls to take his bicycle back home while he remained looking for the deceased.

From the proved facts, the court a quo drew the interference that the appellant isolated the deceased and remained behind with her by the gardens for the purpose of committing the offence.  It was for that reason that the appellant temporarily fled from home only to turn himself in and request James Bopoto to escort him.  It then convicted the appellant.

Regarding sentence, the court a quo found that the offence was committed in aggravating circumstances of rape.  After examining a line of authorities, it concluded at p 11 of the cyclostyled judgment:

“Coming to the present case, the accused isolated the deceased at the gardens.  He then brutally raped his own niece.  There were marks of violence around the neck, arms, back and chest of the deceased.  The accused must have then strangled the deceased to suppress disclosure.  In the absence of any explanation from the accused, that is the finding the court has had to make.  The other aggravating feature is that the deceased was a twelve year old niece of the accused.  She looked up to the accused for protection and not abuse.”

With that, as already stated, the court a quo imposed the death penalty.

PROCEEDINGS BEFORE THIS COURT

In terms of the law, the appellant has an automatic right of appeal having been given the penalty of death.  Surprisingly he noted an appeal against conviction only and on the following singular ground:

“The Honourable court a quo grossly misdirected itself in finding the appellant guilty of murder on the basis of circumstantial evidence when the evidence on record and the facts did not exclude every reasonable inference including the possibility that the deceased was murdered by someone else other that the appellant.

RELIEF SOUGHT

Wherefore appellant prays that the appeal be allowed and the decision of the court a quo be set aside and in its place the following order be granted:

The accused person be and is hereby acquitted.”

It is apparent that the appellant has not set out any ground of appeal against sentence.  This is improper.  Form 3 of the Supreme Court Rules, 2018 provides the following:

“GROUNDS OF APPEAL: (These must be set out clearly and specifically on the back hereof in a separate document bearing the name of the appellant. Grounds of appeal against conviction and against sentence must be set out separately.  Grounds must be set out in numbered paragraphs in compliance with rule 19.  If a ground of appeal is that there was no evidence on which the trial court could convict, or that conviction was not justified on the evidence, the reason why this is said must be set forth shortly.)”

This court’s rules are clear that the grounds of appeal against conviction and against sentence must be set out separately.  The appellant has not properly placed the issue whether the sentence imposed was proper before the court.  Be that as it may, this Court is enjoined to scrutinize the sentence to satisfy itself that it accords with the law.  In that respect, regardless of the appellant’s grounds of appeal, two issues commend themselves for resolution in this appeal.  They are:

Whether the court a quo erred in finding the appellant guilty of murder.

Whether the court a quo erred in imposing the death sentence.

WHETHER THE COURT A QUO ERRED IN FINDING THE APPELLANT GUILTY OF MURDER

Mr Kadzere who appeared for the appellant motivated the appeal only on the single ground that the court a quo erred in convicting the appellant on circumstantial evidence which did not exclude other reasonable inferences including the possibility that the deceased may have been killed by someone else.  He submitted that the place where the murder took place is one which was open to other villagers.  In his view, anyone else could have accessed the deceased, killed her and left her body in the state and place where it was discovered.

Mr Kadzere further submitted that after the police extracted vaginal swabs and hair combings from the deceased’s body which were taken for forensic examination, the state failed to produce the results.  It is those results which would have proved the appellant’s guilt beyond reasonable doubt.  For that reason, so it was argued, the state failed to prove the appellant’s guilt as required by law.

I mention in passing that the reason why the forensic examination was not conducted was explained by the investigating officer who stated that when he made a follow up on the samples with the Police Forensic Department he was advised that the department did not have the wherewithal to conduct the tests.

Contesting the appeal, Mr Makoto for the state, submitted that the conviction cannot be faulted because, even though the evidence relied upon was circumstantial, all the proved facts point to the appellant having committed the offence and no one else.  He drew attention to the relevant parts of the court a quo’s judgment where it examined those proved facts and demonstrated why it was drawing the inference that the appellant committed the offence.

I have said that the court a quo convicted the appellant on the basis of circumstantial evidence anchored, in the main, on the testimony of the ten year old Idah Chihota.  She is a witness who was found to be credible.  The law on circumstantial evidence is settled.  The requirements for the acceptance of circumstantial evidence as laid in the celebrated case of R v Blom 1939 AD 188 by WATERMEYER JA are that:

the inference sought to be drawn must be consistent with the proved facts.  If it is not, the inference cannot be drawn.

the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  If they do not exclude other reasonable inferences then there must be doubt whether the inference sought to be drawn is correct.

If the evidence of death tendered is circumstantial, it must be so cogent and compelling as to convince the court that the facts cannot be accounted for on any rational hypothesis other than murder.  See S v Shonhiwa 1987 (1) ZLR 215 (S).

What therefore were the proved facts in the present matter from which an inference was sought to be drawn?  They are that the appellant sent the deceased and her two younger sisters on an errand.  He immediately followed them riding a bicycle and caught up with them.  When he did, the appellant separated the girls by instructing the two younger ones to continue on their way to Gandiwa’s homestead while he instructed the deceased to go to the gardens.

Later, when the deceased was sought after by her siblings upon their return from a wild goose chase at Gandiwa’s, she could not be found where they had left her.  Only abandoned vegetable leaves were found strewn by the gate.  A call out for the deceased’s name only yielded a response from the appellant who emerged from the same place the deceased was supposed to be stating that he was also looking for the deceased.  Indeed her lifeless body was subsequently found in the bushes near the gardens in a sitting position while tied to a tree to simulate suicide.

The appellant later disappeared from home only to hand himself over to James Bopoto after the deceased’s disappearance.  He requested to be escorted back home to his brother, the father of the deceased.

With that kind of evidence, the court a quo had the luxury not to even mention the confession the appellant made to the police.  It did not have to rely on it at all because the proved facts led to only one reasonable inference, that the appellant raped his niece and killed her to suppress the heinous and indeed despicable abuse he perpetrated on her.

I have no doubt whatsoever that the state managed to prove the appellant’s guilt beyond a reasonable doubt.  Proof at that level or standard means just that.  The doubt must be reasonable not fanciful as the one suggested on behalf of the appellant which is that someone else other that the appellant, who happened to be passing by the gardens, attacked and killed the deceased.

The point was made by this Court in S v Isolano 1985 (1) ZLR 62 (S) regarding proof beyond reasonable doubt:

“In my view the degree of proof required in a criminal case has been fulfilled.  In Miller v Minister of Pensions [1947] 2 All ER 372 (KB) LORD DENNING described that degree of proof as follows:

‘… and for that purpose the evidence must reach the same degree of cogency as required in a criminal case before an accused person is found guilty.  The degree is well settled.  It need not reach certainty, but must carry a high degree of probability.  Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.  If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” (The underlining is for my emphasis).

The court rejects the appellant’s contention that his guilt was not proved beyond reasonable doubt and that there was a reasonable possibility that someone else murdered the deceased.  The appeal against conviction is without merit and ought to fail.

WHETHER THE COURT A QUO ERRED IN IMPOSING THE DEATH SENTENCE

In terms of s 48 of the Constitution:

“(1)     Every person has the right to life.

(2)      A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances …”

It is true that at the time the appellant was sentenced the above constitutional provision had not been enabled by the amendment to s 47 of the Criminal Law Code introduced by the General Laws Amendment Act No. 3 of 2016.  It introduced s 47 (2) stipulating that in determining an appropriate sentence to be imposed upon a person convicted of murder the court shall regard as an aggravating circumstance, inter alia, that the murder was committed in the course of or in connection with, or as a result of rape or other sexual assault of the victim.  It is also an aggravation that the murder was preceded by physical torture or mutilation of the victim.

In terms of s 47 (4) a person convicted of murder shall be liable to death.  Section 337 (1) of the Criminal Procedure and Evidence Act, which was also introduced by Act 2 of 2016, reposes on the court a quo the power to impose the sentence of death upon an offender convicted of murder if it finds that it was committed in aggravating circumstances.

Even before the amendments on the imposition of a death sentence were introduced, the court a quo retained the discretion to impose it in appropriate circumstances. An appeal court will only interfere with the exercise of discretion in limited circumstances.  See Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S).  In respect of sentencing, it is pre-eminently the discretion of the trial court which an appeal court is loath to interfere with except in glaring situations of irrationality or unreasonableness.

I am satisfied that the court a quo properly exercised its sentencing discretion.  It took into account what is now accepted by statute as an aggravating circumstance, that the murder was committed in the course of, or in connection with or as a result of rape.  There is no basis for interference with the sentence that was imposed.

DISPOSITION

The appellant was properly convicted of murder because there was overwhelming evidence that he committed the offence.  The murder itself was senseless in the extreme by a calculative and callous person with no respect for human life.

It is a murder which was meant to conceal the rape of a child and throughout the proceedings the appellant showed no remorse whatsoever to the extent of threatening to kill the key witness in the case, a ten year old niece of his.  Her only sin was revealing what the appellant had done.  In imposing the ultimate penalty of death the court a quo properly exercised its sentencing discretion.

In the result, it is ordered as follows:

The appeal is hereby dismissed in its entirety.

GWAUNZA DCJ	:	I agree

KUDYA JA		:	I agree

Kadzere, Hungwe & Mandevere, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners