S v MLAMBO 1992 (2) ZLR 156 (S)

Flynote

Criminal procedure — improper to produce record of previous convictions of accused if court finds that no extenuating circumstances

Criminal procedure (sentence) — murder — extenuating circumstances — court must arrive at proper Judgment on issue of extenuation — intoxication — evidence of intoxication despite accused's denial that he was drunk — concession by inexperienced defence counsel that no extenuating circumstances not decisive

Headnote

In a murder case there was evidence from State witnesses that the appellant was moderately drunk when he struck an old lady on the head with a log, thereby killing her. The trial court found that the accused was not intoxicated when he fatally assaulted the old woman because in his evidence he had denied that he was drunk.

The trial judge had given no Judgment on the issue of extenuating circumstances. After an inexperienced legal counsel representing the accused had conceded to the trial judge that there the accused's intoxication did not amount to an extenuating circumstance, the judge had simply stated that he agreed that there were no extenuating circumstances. After the court had stated that there were no extenuating circumstances the State had led evidence of the accused's previous convictions. On appeal:

Held, that a trial court should not conclude that the accused was not drunk simply because in his evidence he denies that he was drunk. For one reason or another accused often deny that they were drunk when the contrary is true. The trial court must carefully examine whether, despite such a denial, there is evidence of drunkenness. In the present case there was evidence from the State witnesses that he was moderately drunk and the irrational way in which he acted suggested that he was acting under the influence of liquor and that his passions may have been inflamed by drink.

Held, further, that a trial judge must always give a proper Judgment on the issue of extenuating circumstances. Despite the concession on the defence counsel concession, trial judge should have considered the whole background of the case, and balanced the mitigatory features against the aggravating features in order to arrive at a reasoned conclusion.

Held, further, that it had been highly improper for the State to produce the record of the previous convictions of the accused after a brief adjournment following the judge's statement that there were no extenuating circumstances because once the trial court had ruled that there were no extenuating circumstances the only penalty it could impose was the death penalty. However, if the Appeal Court overturns the finding of the trial court that there were no extenuating circumstances, the prosecutor is then entitled to place the record of the accused's previous convictions before the Appeal Court.

Held, further that on balance there were extenuating circumstances in the present case. He had acted in an irrational way because he was moderately drunk. The fatal assault was not premeditated but rather an impulsive, spontaneous one. The appellant was in a rage and his passions were possibly inflamed by drink. He had delivered one blow and had attempted to revive the deceased when he realised the enormity of his folly. On the other hand, he had, without any provocation, killed an elderly lady who was trying to calm him down.