Wonder Munsaka v The State

### Preamble
Judgment No. SC 79/18
1
Criminal Appeal No. SC 459/18
---------


DISTRIBUTABLE 		(70)

WONDER   MUNSAKA

v

THE   STATE

SUPREME COURT OF ZIMBABWE

MAKARAU JA, GUVAVA JA & BERE JA

HARARE 27 NOVEMBER 2018

K. Dube, for appellant

T.R. Takuva, for respondent.

GUVAVA JA:		This is an appeal against the judgment of the High Court sitting at Hwange dated 9 November 2017.

It is common cause that the appellant was arraigned before the court a quo and charged with murder.  It was alledged that on 7 October 2014 and at Zenka Village Binga the appellant wrongfully, unlawfully and intentionally killed Fortunate Mutale.

The appellant tendered a plea of not guilty to the charge.  After a full trial he was convicted of murder with actual intent.  The court found that the murder was committed in aggravating circumstances and the appellant was sentenced to death.

Whilst the appellant noted an appeal against sentence only, in view of the penalty of death imposed upon the appellant, it is imperative that the appeal should lie against both conviction and sentence.

In this regard we therefore requested for supplementary submissions from counsel to address us on the question of conviction.  We are indebted to both counsel for their prompt submissions.

The facts giving rise to this matter may be summarized as follows:

The appellant and the deceased were husband and wife.  At the time of the commission of the offence they had been married for a period of 6 years and had 2 minor children.

On 7 October 2014 the appellant and the deceased had an altercation.  The appellant armed himself with an axe and struck the deceased several times.  The deceased died as a result of the injuries sustained.

A postmortem report was compiled and it gave the cause of death as

spinal cord injury

decapitation

chop wound

After decapitating the deceased’s head the appellant placed it in a cardboard box under the bed in his bedroom.  The body of the deceased was left lying in a pool of blood in the yard outside the kitchen hut.

In his defence outline the appellant stated that he saw a man leaving the kitchen hut where his wife was sleeping.  Upon questioning her about who the man was, he was provoked by her response.  He picked up an axe and struck the deceased.

He also alleged that the deceased was having an adulterous affair with the man in question.

The court a quo did not believe the appellant’s version.  In coming to this conclusion the court took into account the evidence of the state witnesses who stated that as far as they were aware the appellant and the deceased were happily married.  The appellant’s grandmother and a neighbour denied that the deceased was involved in any extra marital affairs.

The court also considered the fact that the appellant gave conflicting stories.  He abandoned his defence outline and stated in his evidence in chief that he found the deceased with an unknown man in the kitchen hut.  He further stated that they both attacked him and he armed himself with an axe and struck the deceased in an effort to defend himself.

This story was different from his confirmed warned and cautioned statement where he made no mention of the deceased infidelity or alleged attack by the deceased and the unkown man.

When questioned further he failed to give a coherent account of what had transpired on the night in question.

The court a quo concluded that the appellant was not being truthful and that he had killed the deceased in cold blood.

Mr Dube for the appellant conceded in his supplementary heads of arguments that the court was correct in finding the appellant guilty of murder with actual intent.  He submitted that repeatedly striking the deceased with an axe and decapitating the deceased was proof that he intended to kill the deceased.

We are satisfied that the court a quo cannot be faulted for convicting the appellant with murder with actual intent to kill.  The assault upon the deceased was vicious and protracted.  The injuries were inflicted by an axe and directed at the deceased’s head.  The appellant struck the deceased no less than 11 times.

The appellant’s version of events was contradictory indicating that he was changing his story as the trial progressed.

The conviction of murder with actual intent is accordingly confirmed.

In respect to sentence, it has been submitted on appellant’s behalf that the sentence of death is so excessive that it induces a sense of shock.

Mrs Takuva for the state submitted that the sentence was appropriate in the circumstances.  She stated that the appellant had not challenged the finding by the court a quo that the murder was committed in aggravating circumstances in terms of s 47(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that the court may pass a sentence of death upon an offender convicted of murder if it finds that the murder was convicted in aggravating circumstances.

The exercise of discretion by the court a quo to impose the death penalty in the circumstances of this case cannot be impugned.

Accordingly, we are of the unanimous decision that the appeal against both conviction and sentence lacks merit.

For these reasons the appeal is hereby dismissed.

MAKARAU JA:		I agree

BERE JA:			I agree

Shenje & Company, appellant’s legal practitioners

The Prosecutor General, respondent’s legal practitioners.