Emmanuel Dolosi & 3 Ors v The State

### Preamble
Judgment No SC 98/23
1
Criminal Appeal No SC 211/16
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REPORTABLE	(98)

EMMANUEL     DOLOSI     (2)     KUDZAI     MADZIRO     (3)      LEEROY   MUTEYERA     (4)     RONALD     ROORAI     SAMBO

v

THE     STATE

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHIWESHE JA & MUSAKWA JA

HARARE: 25 MARCH 2022 & 29 SEPTEMBER 2023

T. Biti, for the first appellant

K. Musimwa, for the second appellant

T. J Chivanga, for the third appellant

F. Murisi, for the fourth appellant

A. Muzivi and Ms L. Chitanda, for the respondent

MUSAKWA JA:   This is an appeal against the whole judgment of the High Court (the court a quo) in which it convicted the appellants of murder with actual intent and sentenced them to death.

FACTUAL BACKGROUND

The appellants were indicted before the court a quo on a charge of murder in contravention of s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  A reading of the indictment shows that the State was not specific as to which paragraph of s 47 it was seeking to prove. It was alleged that on 2 July 2010 and at Gletwin Farm Chishawasha Highlands Harare, the four appellants or one or more of them unlawfully and with the intention to kill, caused the death of Edson Manhembe by shooting him three times in the chest and stomach with a firearm.

The allegations against the appellants were that they proceeded to Gletwin Farm to commit robbery. They were in the company of Clever Ndlovu who was later killed during a shootout with Police officers.  Entry onto the farm was effected through a hole in the security fence. The guards were assaulted and tied up. Edson Manhembe (the deceased) was shot by Clever Ndlovu and he later died in hospital the next morning from gunshot wounds.

The appellants pleaded not guilty to the charge. The first appellant’s defence was that he was present at the farm because he had been requested by the second appellant to assist him in transporting some household property. He denied having knowledge of the planned robbery. He claimed that the indications he made were not voluntary. This is because he had been assaulted and he feared further assaults. In addition, he was not well as he was undergoing treatment for meningitis and tuberculosis.

The second appellant denied being at the farm at the time the crime was committed. He claimed that on the night in question he was with his wife at a hospital. He claimed to have been assaulted in order to induce a confession. He also claimed that he was denied access to his legal practitioner and was told he would meet him at court.

The third appellant’s defence was that at all material times he worked for Police Internal Security Intelligence and it was part of his duties to pursue any issues concerning wanted persons. He learnt that the second appellant was a wanted person, and in the course of conducting his duties, he telephoned the second appellant. According to him, that is why he became a suspect in the matter. He claimed to have been coerced to make indications.

The fourth appellant claimed that he was present at the farm but he denied that he went there intending to commit any crime. He claimed that he was never told or was aware of the plan to commit robbery. He was denied access to legal representation.

The State led evidence from several witnesses, some of whom were present at the farm whilst others were Police officers who investigated the crime. Evidence of indications made by the appellants was led. In his challenge to the admissibility of the indications, the first appellant testified that when he refused to go for indications, he was assaulted. He told Police officers that he knew the turnoff to Gletwin as that was on the way to his rural home. One of the Police officers told him he would signal for him when to start pointing out. The second appellant testified that he was severely assaulted and was denied access to his legal practitioner whom he was informed he would meet at court. He had swellings when he made the indications. The third appellant testified that prior to making indications he was told what to point out. His hands were swollen following the assault. The fourth appellant testified that he participated in the indications out of fear as he had been assaulted and had sustained some injuries. He did not know the place and the video recording was edited.

The evidence of the indications was held admissible following a trial within a trial. The court a quo found that the indications were made freely and voluntarily without compulsion or rehearsal. Nonetheless, it is noted that one of the Police officers, Alfred Mhakayakora confirmed, during cross-examination, that the second appellant’s hands were swollen. He also confirmed that the third appellant had grass on his head and clothes, which he attributed to the appellants having been seated under a tree as they took turns to make indications. In respect of the fourth appellant, he conceded that the former stated that he did not know the way to Gletwin. He also confirmed that the fourth appellant’s T-shirt had stains although he denied that they were blood stains. Having warned the appellants about indications at Glen Lorne Police Post, there was no video recording until they got to Gletwin Farm. He also conceded that the video recording of indications was not continuous, with the rider that the instances were not many.

It was on the above evidence that the court a quo found that the appellants, together with Clever Ndlovu associated with a common purpose to prosecute an unlawful enterprise. The court a quo also found that the gang had actual intent to commit armed robbery and in the course of that association, the deceased came into their way and was thus shot. On that finding, the court a quo, therefore, found the appellants guilty of murder with actual intent. Having found no extenuating circumstances and that there were aggravating circumstances, the court a quo sentenced the appellants to death. This resulted in the present automatic appeal.

GROUNDS OF APPEAL

The grounds of appeal are as follows:

“The court a quo grossly erred in making a finding pursuant to the trial within the trial, that the videotape evidence was admissible on its own.

The court a quo, ignored the overwhelming evidence of assault that should have elicited and solicited a total no nonsense approach from the court in favour of the rights of the individuals.

The court a quo, misapplied, and failed to appreciate the law on the doctrine of    common purpose and therefore incorrectly, convicted the accused persons.

The court a quo, failed to find evidence of a conspiracy to commit a crime which foreseeably could have resulted in murder.

The court a quo, failed to establish the critical fact of whether the first appellant or any of the other accused persons for that matter knew that Clever Ndlovu possessed a weapon.

The court a quo erred in convicting the Appellants of murder on the                                   30th of June 2014 at a time when capital punishment had implicitly been abolished by virtue of the passage of the Constitution of Zimbabwe in May of 2013.”

FIRST APPELLANT’S SUBMISSIONS ON APPEAL

In motivating the appeal, Mr Biti, for the first appellant argued that the court     a quo erred in that it did not consider the fact that the State did not lead medical evidence and the post mortem report was not tendered as evidence. Despite this submission, the record shows that the post-mortem report was produced by consent. He further submitted that the indications and the warned and cautioned statements made by the appellants were inadmissible as they were induced through the use of violence. He further argued that the court a quo erred in finding that the appellants acted in common purpose in committing the crime of murder when the appellants did not possess the mens rea to commit the crime. He argued that the first, third and fourth appellants possessed the mens rea to commit robbery and did not have the mens rea to commit murder.

Counsel for the first appellant further submitted that the court a quo relied on provisions of the repealed Constitution to sentence the appellants to death. He submitted that the State failed to prove that there were aggravating circumstances entitling the appellants to be sentenced to death. He further submitted that the appellants have already served 12 years in prison as they have been in prison since 2010 hence have already paid their dues and there is no point in remitting the matter for re-sentencing. He submitted that it is on that basis that the appellants ought to be released from prison.

SECOND APPELLANT’S SUBMISSIONS ON APPEAL

Mr Musimwa, for the second appellant, associated himself with the submissions made by the first appellant’s counsel. He further submitted that the state failed to prove that the second   appellant was at the crime scene on the day the murder was committed.  He also submitted that the second appellant was only 25 years old and was immature at the time of the commission of the crime.

THIRD APPELLANT’S SUBMISSIONS ON APPEAL

Mr Chivanga, for the third appellant, fully associated himself with the submissions made by the first appellant’s counsel. He added that s 196 of the                                                 Criminal Law (Codification and Reform) Act [Chapter 9:23] is only applicable if the appellants were present with Clever Ndlovu who fired the shot that killed the deceased. He argued that the appellants were not present but were in a separate room when the deceased was shot.

FOURTH APPELLANT’S SUBMISSIONS ON APPEAL

Mr Murisi, for the fourth appellant, fully associated himself with the submissions made by the first appellant’s counsel. He further submitted that the fourth appellant produced a T-shirt covered in blood as proof of the alleged torture by the police. He further submitted that despite this evidence, the court a quo confirmed the appellants’ warned and cautioned statements.

RESPONDENT’S SUBMISSIONS ON APPEAL

Per contra, Mr Muzivi for the respondent submitted that it was common cause that it was Clever Ndlovu who fired the bullet that killed the deceased. He submitted that where issues are common cause the failure to produce a post mortem report is not fatal. He further submitted that it was foreseeable that the appellants would encounter resistance which could lead to murder being committed. He further submitted that the allegations of torture could not be accepted as there was evidence of a civilian who did not witness the appellants being assaulted. He further submitted that the second appellant was at the crime scene on the day in question as he was the one driving the vehicle. He further submitted that the murder was committed during the course of robbery and capital punishment has always been imposed in such matters. He further submitted that the court a quo erred when it applied the common law in deciding that the murder was committed in aggravated circumstances, taking into account when the crime was committed.

In response to a query from the court regarding the law applied by the court a quo in sentencing the appellants, counsel for the respondent conceded that the court a quo erred and that the matter should be remitted for sentencing afresh. It is not in dispute that whilst s 48 (2) of the Constitution provides that a law may permit the imposition of the death penalty convicted of murder committed in aggravating circumstances, such law had not yet been enacted when the appellants were sentenced to death.

ISSUE FOR DETERMINATION

Whether or not the court a quo was correct in finding the appellants guilty of murder.

APPLICATION OF THE LAW TO THE FACTS

The starting point to note is that the conviction is largely based on the evidence on indications that were made at the scene of crime. In line with the decision in S v Nkomo 1989 (3) ZLR 117 (S), the pointing out by the appellants must have been admissible if such pointing out was proven to have been done freely and voluntarily. The State bears the burden of admissibility beyond a reasonable doubt. In this respect see the case of S v Dhliwayo and Another 1985 (2) ZLR 101 (SC). It is pertinent to note that in the present case nothing was recovered as a result of the pointing out by the appellants. Therefore, the purpose of producing the indications was to do with the statements that accompanied the pointing out. Essentially, the State was seeking to prove that the appellants confessed to the commission of the crime by pointing out the manner in which they committed the murder.

The import of the dicta in S v Dhliwayo and Another supra and other authorities cited therein is that statements made by an accused person to a Police officer cannot be used in court without the prosecution satisfying beyond a reasonable doubt that they were not induced by extraneous factors.  For instance, in the present case it must have been clearly established that the statements accompanying the indications were made freely and voluntarily without any undue influence or pressure being brought to bear upon the accused. The appellants contend that the indications were not made freely and voluntarily as they were subjected to threats and assaults by the Police officers who took them for indications. Specifically, the second appellant in his defence outline stated that he was tortured by the police officers to compel him to agree to go for the indications. He further stated that his body was swollen and that he lost a tooth while in police custody due to the assaults. When cross-examined, Alfred Mhakayakora a detective with the Criminal Investigation Department’s Homicide Section confirmed that the second appellant had swollen hands and had a missing tooth. He also confirmed that he saw some dirt on the clothes of the third appellant. It is pertinent to note that the prison warrant in respect of the fourth appellant recorded that he had some injuries when he was admitted at Chikurubi maximum prison. One then wonders how he sustained those injuries. Additionally, the video on the indications did not run continuously as was confirmed by Alfred Mhakayakora. It raises questions on what was happening in between the intermittent recordings of the video. This is especially so when one considers the allegations of assault.  Therefore, it cannot be ruled out in these circumstances that indeed the appellants were assaulted and tortured before being admitted to prison. In our view, there was inadequate rebuttal of ill-treatment and torture by the police.

Section 44 of the Constitution of Zimbabwe, Act 2013 (the Constitution) provides as follows—

“Duty to respect fundamental human rights and freedoms.

The State and every person, including juristic persons and every institution and agency of government at every level must respect, protect, promote and fulfil the rights and freedoms set out in this Chapter.”

It follows from s 44 of the Constitution that Police officers must take such steps as are sufficient to advance the rights of accused persons as provided in s 50 as read with s 70 of the Constitution. The Police officers ought to have protected and promoted the right to dignity which is enshrined in s 50 of the Constitution. The appellants deserved to be treated humanely and with respect for their inherent dignity and not to be compelled to make confessions. The present Constitution has heralded a new order where the Bill of Rights has been expanded. The Bill of Rights exists to safeguard and enhance people’s rights and freedoms. Every governmental institution must act as constitutionally mandated and play their role to ensure the enjoyment by all persons of the rights which are provided for.

Section 70 (3) of the Constitution stipulates that in any criminal trial, evidence that has been obtained in a manner that violates the Bill of rights must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest. The trial court ought to have excluded such evidence as there was no adequate rebuttal of allegations of ill-treatment and assault.

Additionally, the appellants were not afforded access to legal representation prior to making the indications. Legal representation is a fundamental right. It is provided for in terms of s 69 (4) and s 70 (d) of the Constitution. Since the appellants were denied legal representation prior to making indications, this compromised the admissibility of the indications. The right to legal representation is a safeguard against self-incrimination. See Miranda v Arizona 384 US 436 (1966). Alfred Mhakayakora conceded that the appellants did not have access to legal representation prior to going for indications. When he was asked about denying the appellants access to legal representation during indications, he simply answered that the appellants never mentioned to him that they needed legal representation. This is contrary to s 70 (f) of the Constitution which provides that it is the duty of a police officer to promptly inform an accused person of the right to choose a legal practitioner and at his expense, to be represented by that legal practitioner.

There is one other aspect to be considered. The court a quo found the appellants guilty of murder based on the doctrine of common purpose. Consequently, the court stated the following;

“The causal link between the shooting by Ndlovu resulting in the death of the deceased cannot be viewed in isolation of the common design of the group. They ought to have foreseen that in so engaging with a common purpose and consent to, embark on an armed robbery at a guarded police farm, there was bound to be resistance which would occasion casualties or death especially going in armed as they did”.

The doctrine of common purpose entails that where a number of persons jointly pursue a common unlawful purpose, each is liable for the actions of the others which are committed in pursuance of the common purpose. Since the codification of the criminal law, common purpose as it was known in terms of the common law is no longer part of our law. Instead, for purposes of liability of multiple accused, the code now provides for conspiracy (s 188) and co-perpetrators (s 196A). The court a quo stated that the doctrine of common purpose was codified in s 188 of the code. On the contrary s 188 relates to conspiracy and reads in part as follows:

“(1)   Any person who enters into an agreement with one or more other persons for the commission of a crime, whether in terms of this code or any other enactment

(a)   intending by the agreement to bring about the commission of the crime; or

(b)   realising that there is a real risk or possibility that the agreement may bring about the     commission of the crime; shall be guilty of conspiracy to commit the crime concerned.

(2)   For an agreement to constitute a conspiracy

(a)  it shall not be necessary for the parties

(i)  to agree upon the time, manner and circumstances in which the crime which is the subject of the conspiracy is to be committed; or

(ii)  to know the identity of every other party to the conspiracy;

(b)  it shall be immaterial that

(i)  the crime which is the subject of the conspiracy is to be committed by one, both or all of the parties to the agreement; or

(ii) one or more of the parties to the conspiracy, other than the accused, did not know that the subject-matter of the agreement was the commission of a crime.”

The appellants were not charged with conspiracy. Conspiracy is a standalone crime whose punishment is provided for in s 192 of the Code.

The court a quo also referred to s 196 which provides as follows:

“(1)  If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

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

(a) were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

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

(c) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.

(3) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”

The issue of the discarded doctrine of common purpose was discussed at length in the case of Tungamirai Madzokere and Others v The State SC 71/21. In that case MAKARAU JA (as she then was) had this to say at 6-7:

“Whilst the codification of the law brought with it convenience, the reform had wide-reaching ramifications. These ranged from the cosmetic, such as changing the nomenclature for some common law crimes, to the radical and fundamental. It changed the source of criminal law and supplanted itself and other statutes as the predominant source of the criminal law in the jurisdiction.

It appears to me that it was the clear intention of the law makers to make the Code and other statutes the sole sources of the criminal law in the jurisdiction after the fashion of the Napoleonic and other civil law penal codes.  This it sought to achieve through the cumulative effect of the provisions of s 3 and 9.”

Whilst acknowledging that the common law doctrine of common purpose was    re-enacted in s 196 of the Code, the learned Judge further stated the following at p 11:

“In terms of s 3 of the Code as detailed above, the direct application of the common law doctrine of common purpose in establishing the criminal liability of accused persons at the material time was therefore ousted by the enactment of s 196 of the Code. The criminal liability and punishment for two or more people who allegedly acted with a common intent at the time could only be imposed in accordance with the provisions of the Code.”

Notwithstanding that the court a quo erred in applying the discarded common law doctrine of common purpose and despite our finding that the evidence on indications is not admissible, it is necessary to further interrogate other aspects of the evidence in order to establish whether the conviction can be sustained. In the present case, the court a quo found that the appellants, together with Clever Ndlovu had planned to go and rob the farm. The appellants maintained in their evidence that they did not intend to rob the farm. However, in his submissions before this Court, Mr Biti made a concession to the contrary and co-counsels associated with this and other submissions.

The second to fourth appellants are Police officers. Prior to proceeding to Gletwin all the appellants were at Chikurubi where they met Clever Ndlovu. Although Clever Ndlovu is said to have claimed that he wanted to collect some undisclosed items from his workplace (Gletwin), when they arrived there they entered through a hole in the fence and this allegedly made the fourth appellant suspicious. According to the fourth appellant, the second appellant remained in the motor vehicle. This was one of the motor vehicles they used to escape from the scene after the subsequent shooting. The other appellants could equally not have failed to be suspicious. To make matters worse, this was in the early hours of the morning (before 3 a.m.). When they got into the guardroom, two guards were tied up and one of them was assaulted. One amongst the appellants told the guards that they had come to steal. The fourth appellant remained guarding the bound guards and he was armed with a handgun. The fourth appellant confirmed that he is the one who bound the guards. He also confirmed that he had a firearm but claimed not to have fired it. According to one of the guards, the person guarding them had cocked his gun and a bullet was ejected in the process. When the scene was later attended by detectives, a live bullet was recovered from the guardroom.

Although the second and third appellants denied being part of the gang that went to Gletwin, the first appellant implicated them. The fourth appellant also confirmed the second appellant’s presence. The appellants used a motor vehicle which the second appellant had borrowed from his cousin, Owen Chari. After the shooting all the appellants fled from the scene. The immobilized guards testified of hearing the intruders clambering over the gate.

That the appellants planned to commit robbery is evidenced by their conduct from the moment they arrived at Gletwin. The guards were immobilized and one of them was assaulted. One of the intruders stated that they had come to steal. It was confirmed that an attempt had been made to force open the store room. It also turned out that the storeroom had some building materials.

The contradictions in the appellants’ defenses are quite apparent. They purportedly went to Gletwin to assist Clever Ndlovu to collect some unspecified goods. The time of collection was unusual. They used an unorthodox point of entry. The guards in the guardroom were assaulted, bound and guarded with a firearm. There was discharge of a firearm. The deceased was found injured near the store room. If the appellants’ mission to Gletwin was innocent as they claimed, they would not have used an unlawful point to enter the premises. They would not have tied up the guards and guarded them as some of the appellants went to the fowl run and the store room. They would not have sought to account for all the guards as demonstrated by one of them going after the guard who had sought refuge in the fowl run. In addition, they would not have been expected to flee to the getaway vehicles after the shooting. In any event, none of them volunteered to report the shooting by Clever Ndlovu. They chose to keep quiet about the incident until they were arrested.

In his testimony, the fourth appellant claimed that after realizing that Clever Ndlovu was armed, he had sought to withdraw from the unlawful enterprise but was threatened by the former. This cannot be true, taking into account that the fourth appellant was equally armed. The guards he tied up never confirmed this assertion. Again, if such was the fourth appellant’s inclination to withdraw, he should have reported the incident at the earliest opportunity after the shooting.

Arising from the facts of the matter, there is no doubt that the appellants associated with each other for an unlawful enterprise to rob the Police farm. This brings them within the ambit of s 196A of the Code. This renders them co-perpetrators. At the very least they had two firearms amongst them. Mr Biti conceded and other counsel associated with the submission that the first, third and fourth appellants harbored the intention to commit robbery. We are also of the view that the second appellant associated if they intended to rob, each of them must have realized the real risk or possibility that the firearms would be used to overcome resistance and each was reckless of the consequences. It cannot be concluded that they deliberately set out to kill, which would render them liable in terms of s 47 (1) (a) of the Code. However, the evidence renders them liable for murder in terms of s 47 (1) (b).

Regarding sentence, at the time the appellants were sentenced in 2014, the law permitting the imposition of the death penalty as provided in s 48 (2) of the Constitution was not yet in place. That law only came into operation in 2016 when s 47 of the Code was amended by the General Laws Amendment Act Number 3/2016 to introduce aggravating circumstances contemplated in s 48 (2) of the Constitution. It follows that the matter has to be remitted to the court a quo for sentencing afresh. See Samson Mutero v The State SC 28/17.

DISPOSITION

Accordingly, it is ordered as follows:

The conviction of the appellants for murder with actual intent be and is hereby set aside and substituted with the following:

“Guilty of murder as defined in terms of s 47 (1) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”

The appeal against sentence is allowed.

The sentence of death is set aside and the matter is remitted to the same court for consideration of and the passing of an appropriate sentence in accordance with the law.

UCHENA JA	:        	I agree

CHIWESHE JA	:         	I agree

Tendai Biti Law, 1st appellant’s legal practitioners.

Musimwa & Associates, 2nd appellant’s legal practitioners.

Scanlene & Holderness, 3rd appellant’s legal practitioners.

Murisi & Associates, 4th appellant’s legal practitioners.

National Prosecuting Authority, respondent’s legal practitioners.