S v MUBAIWA & ANOR 1992 (2) ZLR 362 (S)

Flynote

Appeal — attempted murder — no automatic right of appeal — leave to appeal must be applied for

Criminal law — common purpose — whether second appellant had performed any act of association with the murder and whether he had the requisite intention for murder

Criminal procedure (sentence) — murder — extenuating circumstances — what constitutes — whether present where weapon taken from victim of theft used to kill person intervening to assist victim

Criminal procedure (sentence) — murder — extenuating circumstances — State must not refer to accused's previous convictions at stage when extenuating circumstances are being referred to

Criminal procedure — verdict — competent verdict — murder charge — attempted theft or conspiracy to commit theft not competent verdicts

Headnote

The first and second appellants went to a farm to steal property. Knowing that the farmer, Mr van Dyk, possessed firearms they pretended to the farmer that they were CIO officers who were searching for spies and for unlicensed firearms. Using this pretence they induced the farmer to hand over one of his firearms, a pistol. This weapon, which was loaded, was handed to the first appellant. Some of the farmer's workers had suspected that the appellants were criminals and had gone to a neighbouring farm and informed the owner of that farm, Mr Vemba, of the presence of these men on Mr van Dyk's farm. Mr Vemba and a number of relatives came to try and rescue Mr van Dyk. Mr Vemba had a non-functioning rifle with him. When the first appellant heard Mr Vemba's car arrive, he went outside carrying Mr van Dyk's pistol. The second appellant followed first appellant outside. The first appellant had the pistol concealed behind a clipboard. Mr Vemba advanced on him carrying the rifle and demanded to know what he wanted. The first appellant warned Mr B Vemba not to come near him. However, Mr Vemba advanced on him and when he reached the first appellant he threw down his rifle and grabbed the first appellant by the shoulder. As he did so the first appellant fired one shot from the pistol, hitting Mr Vemba at point blank range in the head and killing him. He also fired several more shots in rapid succession at Mr Vemba's two relatives who had accompanied him. These shots missed the two people. The two appellants were found guilty of murder and of attempted murder. On the murder charge they were both sentenced to death after the trial court found that there were no extenuating circumstances. In an appeal against conviction and sentence:

Held, that there is no automatic right of appeal against a conviction for attempted murder and that leave to appeal should have been sought.

Held, further, that the conviction of the second appellant of murder and attempted murder must be set aside. He could only properly be convicted of these charges if he had formed common purpose with the first appellant to kill Mr Vemba and to attempt to kill his two relatives. For the common purpose doctrine to apply in a case of murder or attempted murder it would have to be proved that the accused did something to associate himself with the actions of the person who actually did the killing or attempted to do so, knowing that the other person intended to kill or foreseeing the possibility that he intended to kill. On the facts, the common purpose doctrine did not apply as:

• there was no prior agreement other than to commit theft by false pretences and possibly common assault.

• there was nothing to show that the second appellant made common cause with the first appellant in respect of the shooting.

• although the second appellant was present and witnessed the killing of Mr Vemba and the shooting at his relatives, he did not commit any act of association, because his act of coming outside did not constitute an act of association.

• the second appellant did not have the requisite mens rea. He did not have actual intention that his fellow criminal should kill the deceased and attempt to kill the others. Although he may have foreseen that the first appellant might engage in a murderous enterprise when he saw him go outside with the loaded weapon, he did not perform any act of association with him reckless as to whether or not death would ensue.

• the second appellant did not causally contribute to the death of the deceased.

The only possible verdict in respect of the second appellant was one of acquittal as attempted theft or conspiracy to commit theft were not competent verdicts on a charge of murder or attempted murder.

Held, further, that on the facts the first appellant was correctly convicted of murder. His conviction for attempted murder was also confirmed, although in respect of only the second complainant.

Held, further, (McNally JA: dissenting) that the finding of the trial court that there were no extenuating circumstances in respect of the murder committed by the first appellant was correct and the appeal against the death penalty was dismissed. The fact that the original criminal plan did not encompass armed robbery or the use of fatal force and the fact that the pistol used in the murder was only acquired at the homestead to which they had gone to steal did not lessen the moral culpability of the first appellant. He made a deliberate decision to take the pistol outside when Mr Vemba arrived in his car and had the pistol concealed behind the clipboard. He must have had in his mind the real possibility of having use the pistol to evade lawful arrest. He had chosen to kill in order to overcome resistance, despite the fact that he had had ample time to reflect on his actions and to choose some other course of action.

Held, further, that the State must not refer to evidence of previous convictions at the stage when extenuating circumstances were being considered. If this rule is broken and there is a reasonable danger that this might have influenced the trial court improperly, it may be necessary for the Supreme Court to interfere with the finding on extenuating circumstances.