The State V Sauro Shezhu [2014] ZWCHHC 1 (19 March 2014)

7 HCC 17/25 HCCR 131/25 THE STATE Versus SAURO SHEZHU HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 25 February,10 & 19 March 2025 Assessors: 1. Mr. Manyangadze 2. Mrs. Mateva Criminal Trial R. Nikisi, for the State T. K. Chamutsa, for the accused MUZOFA J: [1] On the 20th of August 2024 Nyikadzino Matanhire, the deceased was said to be in a jovial mood, drinking beer with his friends including the deceased and singing gospel music at Jupiter Bar Norton. Unbeknown to him, these were the last beautiful memories he left his beloved friends with. When the merrymakers left the bar, each to their place, the accused stabbed the deceased once on the throat and once on the back. He died on the spot. [2] For his conduct the accused was charged with murder in contravention of s47 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23] “the Criminal Code’. [3] The accused pleaded not guilty. He essentially raised two defences, self-defence and intoxication. In his brief defence outline he indicated that he fought with the deceased for no reason. He then stabbed the deceased. He intended to stab him on his hand but missed and stabbed him on the neck. The defence outline was tendered and marked annexure “B’ [4] The background facts to this case are largely common cause. It is for this reason that the State and the defence came up with a statement of agreed facts which was marked annexure ‘A’. The following was recorded as common cause. The accused and the deceased were known to each other. They lived in the same community in Norton. The accused resided at Plot A4 Jinxtown Farm, Norton. [5] On the 20th of August they drank beer together with other patrons at Jupiter Bar, Norton. When the bar closed, they left. The accused, deceased and one Stepmore Mutandawari walked together back home. Stepmore parted ways with the two, branching off to his place. [6] The accused and the deceased continued walking to their homes. The State and the defence agreed that along the way the deceased attacked the accused using a knife. The accused overpowered the deceased, took the knife and stabbed the deceased. At the end of the proceedings we came to a different finding on this aspect and we shall address the issue later the judgment. The State Case [7] Most of the State witnesses’ evidence was admitted. This is a matter that could have proceeded by way of a plea of guilty but for the fact that, murder cases cannot proceed as such. This is because the State must prove the intention and it can only be done through leading evidence. [8] The evidence of eleven witnesses was admitted in terms of s314 of the Criminal Procedure and Evidence Act. These were Mary Tembo, Taurai Kitchen, Takesure Kandira, Masauso Bankis, Letwin Mapengo, Christohper Nyamutenha, Paid Nyenge, Epiphania Munoda, Prosper Tsvangirai, Shamiso Chowe and Doctor Mukonyonyara. 8.1 Mary Tembo She resides at Plot 14 Hill view Farm, Norton and employed at Jupiter Bar as a bar attendant. She knew the deceased and the accused as patrons at the bar. On the 20th of August 2024 she was on duty at the bar. The deceased drank beer with Stepmore Mutandawari together with other patrons. The deceased later joined the now deceased and his colleagues. She observed that the deceased was in a very jovial mood singing gospel music with his colleagues. At the close of the bar the deceased, accused and colleagues left the bar at around 2245 hours. 8.2 Taurai Kitchen He resides at Plot 48 Jinxtown Farm, Norton. On the 21st of August 2024 at around 0700 hours while walking on a strip road in Plot 28 Jinxtown Farm he stumbled upon the body of the deceased lying facing downwards in a pool of blood. He identified the deceased as his brother in law. He notified other villagers and the Village head Takesure Kandira about the incident. 8.3 Takesure Kandira He resides at Plot 24 Jinxtown Farm, Norton and the village head at Jinxtown Farm. On the 21st of November 2024 Taurai Kitchen reported to him about the deceased. He rushed to the scene and also reported the matter at Norton Rural police. While at the scene of crime a group of young men brought the accused. They had a blood-stained homemade knife which was recovered from the accused and a black KGtel cell phone. The items were handed over to Sergeant Munoda. 8.4 Bankis Masauso He resides at Plot 28 Jinxtown Farm, Norton. When he received news of the deceased’s death, he went to the scene of crime. He gathered news that the accused was the last person seen with the deceased. He did not waste time, he was proactive about the situation, he organized a group of young men to track the accused person. They went to the accused’s place. They could not find him. They continued to search for him until they waylaid him and arrested him. The accused had left the complainant’s Kgtel cell phone with a security guard at Nyauma Farm for charging. He recovered the cell phone. At the accused’s homestead he recovered a homemade knife from the accused’s thatch roofed bedroom, a t- shirt inscribed ZANU – PF and white shoes with erased blood spots. The items were later handed over to Sergeant Munoda. 8.5 Christopher Nyamutenha A duly attested member of the Zimbabwe Republic Police. He was stationed at Manyame Police at the time the offence was committed. On the 21st of August 2024 he ferried the body of the deceased from Jinxtown Farm to Norton Hospital mortuary. 8.6 Proud Nyenge A member of the Zimbabwe Republic Police based at Norton Rural at the time. On the 21st of August 2024 while at the scene of crime the accused was brought by members of the public and he made indications freely and voluntarily. He witnessed the accused person being warned and cautioned by Sergeant Munoda on the 22nd of August 2024. The accused made his statement freely and voluntarily in his presence. 8.7 Epiphania Munoda She was a Sergeant in the Zimbabwe Republic Police based at Norton Police, she attended the scene of crime following a report that was made. Together with other officers they proceeded to the scene of crime where they found the deceased lying on the ground along a footpath in Plot 20 Jinxtown Farm. She observed that the deceased had a cut on the throat and a small cut on the back. After a while the accused was brought by Bankis Masauso and a group of young men. He was the suspect in this case. She was also handed over a homemade knife recovered from the accused’s thatched bedroom hut and a black Kgtel cell phone imei numbers 353990741290493 and 53990741290501. She later recorded statements from the accused and witnesses. The accused made indications without any coercion. She drew a sketch plan from the indications. The accused’s statement was later confirmed by a Magistrate. 8.8 Prosper Tsvangirayi A mortuary attendant who received the deceased’s body at Norton Hospital He later handed over the deceased’s body to Sergeant Munoda on the 26th of August 2024 who conveyed the deceased to Sally Mugabe Hospital for a post mortem examination. 8.9 Doctor Mukonyora A duly registered medical practitioner based at Norton Hospital. On the 21st of August 2024 he certified the deceased dead. 8.10 Shamiso Chowe A duly attested consultant doctor. On the 26th of August 2024 at the request of ZRP Norton Rural she conducted a post mortem examination on the remains of the deceased. After her examination she opined that death was due to (i) hemorrhagic shock and (ii) penetrating throat injury. [9] The State also produced the following exhibits by consent of the defence; The accused’s confirmed warned and cautioned statement. This is what the accused said in his response to the charge; “I admit to the charges levelled against me I was drinking beer together with the deceased at Jupiter Bar on Tuesday 20 August 2024 at around 12 midnight. When we were drinking beer, the deceased produced US$100.00 from his pocket. When we were going home together with the deceased, I decided to leave him behind and went ahead to hide in the bush intending to take the money which I had earlier seen in his possession. When he arrived where I was hiding, I stabbed him twice on the neck with my knife which I was holding. He staggered a few metres and fell down. I then searched all his pockets and found his cellphone only and took it leaving (sic) crying stating that I have hurt him.” The post mortem report in which Doctor Shamiso Chowe who examined the deceased’s remains concluded that death was due to haemorrhagic shock and penetrating throat injury.The sketch plan drawn from indications made by the accused and one witness Kitchen Taurai.A black KG cellphone, a black handled homemade kitchen knife, a yellow t-shirt inscribed ZANU PF, a pair of black and white shoes which marked exhibits 6, 7, 8 and 9. [10] One witness gave oral evidence. Stepmore Mutandawari [11] He was the deceased’s friend. He grew up together with the accused in the same area in Norton. On the fateful day he was drinking beer with the deceased and other colleagues at Jupiter Bar. The deceased bought beer. They were drinking super chibuku. Initially the accused was standing nearby, he later joined them. He brought his chibuku beer and was drinking it. [12] When the bar closed, he left together with the accused and deceased since they lived in the same area. The accused had a plastic bag. They walked about a kilometre and he parted ways with the two, the accused and deceased. [13] The following day he was advised of the deceased’s death. He went to the scene of crime and indeed confirmed that the deceased had died. He did not know whether the accused or the deceased had a knife. He did not know what happened between the accused and the deceased. Under cross examination he said the deceased used US$3.00 to purchase beer and had US$10.00 probably that he remained with. [14] His cross examination did not elicit much information except that the deceased had US$10.00 and US$3.00 to purchase the beer. [15] The State then closed its case. Defence Case [16] The accused adopted his defence outline. He opted not to add or subtract anything from his defence outline. [17] Under cross examination the accused admitted stabbing the deceased on the neck, taking the deceased’s cellphone and that there was no bad blood between them. He said the deceased from nowhere tripped him and drew a knife to stab him. He over powered the deceased, took the knife and stabbed the deceased. He intended to strike the hand but missed and struck the neck since it was dark. He also alleged that he was assaulted by the youth that arrested him. They forced him to admit the charges and caused him to sing a song confessing that he was the murderer. When the police eventually arrested him, he admitted the charges since he was afraid of the youths that had assaulted him. He denied that he had a plastic bag at the bar. He also denied that he saw any money on the deceased. The Closing Submissions [18] Both the State and the defence filed their closing submissions. The State identified three issues for determination, whether self-defence is applicable in this case, whether intoxication is a defence to reduce the offence of murder to culpable homicide and whether there was evidence to prove the accused’s guilt beyond reasonable doubt. [19] On the issues identified the State urged the court to dismiss the alleged self-defence primarily because it was an afterthought. The accused admitted the offence in his confirmed statement. On intoxication, that the accused was not intoxicated, and it is not a complete defence. We were urged to find the accused guilty as charged since there was overwhelming circumstantial evidence coupled with the admission in the accused’s statement. [20] The State in its wisdom decided to completely ignore the statement of agreed facts that it produced. It neither recanted it nor abide by it in specific terms. It simply departed from the agreed facts. We say this because once it admitted that the deceased had the knife and the aggressor then the defence of self-defence would probably partially succeed since there was no eye witness to controvert the accused’s version of what transpired. However, our assessment of what transpired from the facts does not confirm that the deceased was the aggressor. [21] On the other hand, the defence relied on the statement of agreed facts made by the parties. In that statement included is a statement that the deceased had the knife which he used to attack the accused. On that basis the defence capitalised on the issue and submitted that the State cannot resile from the statement of agreed facts. The State is bound by its admission. On that basis since the accused acted in self-defence, he must be found guilty of culpable homicide. Analysis [22] The issues for determination present themselves as follows: Whether or not the court is bound by the statement of agreed facts.Whether the accused acted in self-defence.Whether intoxication is a defence in this case. The Statement of Agreed Facts [23] A Statement of agreed facts is entered under two circumstances firstly where the parties agree on what transpired or where the parties engage in plea bargaining. It the first scenario the statement may be used to narrow issues for determination during trial or the facts are common cause or where the State does not have evidence to rebut the accused’s assertions. [24] In plea bargaining, the accused tenders a plea of guilty to the lesser charge and the State accepts the facts as stated by the accused. In most instances this process results in a plea to culpable homicide. In this case the accused did not tender the limited plea neither did the parties agree on it. We therefore take it that the statement of agreed facts was meant to streamline the issues for determination before the court. [25] The issue that arises in this case is whether the Court is bound by the statement of agreed facts in such circumstances. The State represents public interest when prosecuting matters. The admissions it makes therefore must be well informed and in accordance with the proper administration of justice. The benchmark is whether the admissions are supported by the evidence. The State cannot make admissions on issues that are contrary to the established facts. [26] The duty of the court is to make sure that justice is seen to be done. This is why even where the State and defence agree to the lesser offence of culpable homicide, the court must exercise its mind on the propriety of the concession. This is the approach in this jurisdiction and is evident in a plethora of cases where a plea to the lesser charge of culpable homicide is accepted by the State. See for instance S v Dube HB 56/18, S v Sibanda HB 93/16. [27] In this case from nowhere the State conceded that the deceased attacked the accused. We were not told that the State no longer relies on the warned and cautioned statement. What informed the State to make such a concession? Is it because the dead do not speak? How could the State place before the court contradicting information? To achieve what purpose? As a court we urge the State to properly assess the facts before making admissions. Similarly, both the State and the defence must objectively apply their minds to the facts and come up with legally sound admissions. There was no plea bargaining here so why compromise the facts? [28] The Court is at large to make its own assessment based on the facts before it and come to a judicious decision. In any event the parties did not agree on which charge the accused must be convicted of. That area still remains in the domain of the Court. [29] In this case, as we will demonstrate the accused was the owner of the knife, the evidence speaks for itself. To conclude otherwise would be a travesty to justice. We therefore come to the conclusion that the Court is not bound by the statement of agreed facts filed by the parties. Whether the accused acted in self defence [30] The accused did not act in self-defence at all. Firstly, the admitted confirmed warned and caution which was not challenged outlines exactly what transpired on the night in question. Although the accused tried to clutch at straws at the end of the trial under cross examination and stated that he was assaulted by the people who arrested him we were not persuaded. [31] The warned and cautioned statement presents the accused’s first response to the charge. An accused is expected to mention all the relevant facts pertaining to the offence. He did not mention that the deceased had the knife and attacked him. An accused is not obliged to say anything in answer to the allegations against him or her in his or her warned and cautioned statement, however his or her failure to mention any facts relevant to his or her defence may result in the court drawing inferences which can be treated as evidence corroborating other evidence against him or her. See s 257 of the CPEA and John Reid Rowland Criminal Procedure in Zimbabwe LRF 1997 @ 20-23, S v Jekiseni HH429/23. The accused discredits himself or herself if he or she fails to mention relevant facts that are material to his or her defence in the warned and cautioned statement and only raises them later at trial. [32] In this case the accused gave different versions as to what transpired on the night in question. In his statement to the Police, he said he attacked the deceased with a knife searched him and took his phone. In his defence outline which he gave to his legal practitioner he said they fought with the deceased for no apparent reason. He did not mention that the deceased attacked him. He did not mention that the deceased used a knife. He opted not to add anything in his evidence in chief. It was only under cross examination that he said he was attacked by the deceased. His inconsistent statements leave us with no option but to draw an adverse inference against him, he is not truthful we reject his explanation given under cross examination and the defence outline. [33] We accept the version in his statement to the Police. This is because in his defence outline the accused did not challenge his statement. Why did he not advise his legal practitioner about the assault by the youth that effected arrest and how that influenced the confirmation proceedings. In any event, he did not allege any influence by the recording details. The statement was recorded at ZRP Norton rural away from where the youth were. He did not explain why he did not disclose that to the court during confirmation proceedings. What he alleges now clearly it is an afterthought. [34] The circumstantial evidence also confirms that the accused was the owner of the knife. Firstly, if the deceased was the owner of the knife why would accused take it with him to his place of residence. The knife was recovered stashed on his thatch grass roof. Secondly if the accused had been attacked and mistakenly stabbed the deceased on the neck why is it he did not advise anyone about the mishap? Thirdly why did the accused take the deceased’s cellphone? The accused without a blink took the cellphone and gave it to a security guard for charging. He claimed it was his. The accused had a plastic bag at the bar the deceased did have any bag or anything where he could have put the knife as they walked back home. The knife produced before the court cannot possibly fit in a pocket. The only reasonable inference is that it was in the plastic bag. [35] In our view the pieces of evidence taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the offence was committed by the accused and point to the accused as the owner of the knife. They unerringly satisfy the requirements of circumstantial evidence that there must be proved facts and that the proved facts must admit of only one inference sought to be drawn. See S v Shoniwa 1987 (1) 215 (SC) and cases cited therein. Intoxication [36] Essentially in crimes of specific intention intoxication can at most be a partial defence in terms of s221 (1) of the Criminal Code. It is not a complete defence. [37] Professor G. Feltoe, in his book A Guide to the Criminal Law of Zimbabwe, 3rd Edition Legal Resources Foundation, at page 22 makes the important observation that the court must therefore explore carefully the actual effect upon the accused of his consumption of liquor or drugs. The learned author goes on to say: “Liquor and drugs affect different people in different ways. It may be that, although he consumed a considerate amount of liquor, the liquor did not remove his ability to discern what he was doing and he was still able to form the intention to commit the crime. Some people became easily intoxicated and become drunk after consuming a small amount of liquor and others are able to consume a considerate amount of liquor and still remain in control over their mental faculties”. [38] As properly submitted by the State, there was no evidence that the accused was so drunk that he lost self-control. He knew exactly what he was doing. He was in the bar initially observing what was happening, he joined the deceased and others. When they were leaving, he remembered to pick his plastic bag. He walked without incident of a drunken, hopeless person with Stepmore and the deceased for about a kilometre. After committing the offence, he remembered the purpose of the attack on the deceased that is why he searched the deceased. He also remembered to take his knife home. He stashed the knife on the roof. Knives are usually kept in the kitchen but this one was found on the roof of his bedroom. The accused could have planned to conceal the knife. All this point to an alert mind that knew what it was doing as opposed to an overly drunk person. [39] On his part the accused did not put much emphasis on the defence. He did not tell the court that he was too drunk. Under cross examination he admitted that he was voluntarily intoxicated. They had finished a six pack of opaque beer. He evaded the question whether he was still in control of his senses. The defence of intoxication is not applicable in this case. The Evidence [40] We have no doubt that the State proved its case beyond a reasonable doubt. The accused admitted having committed the offence. He did not challenge the statement as envisaged under the proviso to s256 (2). In terms of that provision, an accused is still at large to challenge a confirmed statement, he does this by giving evidence how his freewill was interfered with in making the statement. In this case nothing was placed before the court except some response under cross examination. That is wholly inadequate. [41] In terms of s273 of the CPEA it is competent for a court to convict any person by reason of a confession provided there is evidence aliunde that the offence was committed. In this case the post mortem report confirms that the deceased did not die of natural causes. He died of stab wounds synonymous with what the accused described in his statement. [42] Besides the confession the circumstantial evidence already aliunded to shows that the accused committed the offence. The accused was the factual cause of the death. [43] On intention, the court cannot possibly get inside the accused’s mind. It considers the circumstances surrounding the commission of the offence. The weapon used, the number of blows, the body parts targeted and the accused’s conduct before and after the commission of the offence. [44] We find that the accused had the actual intention to kill. He watched the deceased at the bar and picked his target to attack. He had his knife that he used. His intention as admitted was to immobilise the deceased to rob him. This is a clear case of a murder in the course of a robbery. The deceased had a shallow cut on the back. The probabilities are that he could have been attacked while he walked away from the accused or was trying to escape. The second cut was described as; “deep cut on the throat severing the trachea and right caratid vessels into the right hemithorax to the intercostal space 3rd and 4th ribs” [45] The deep cut implies that so much force was applied on a very vulnerable part of the body. It was so deep that it severed the throat right into other internal organs. In our view the accused exerted one blow to deal with the deceased in one thrust. We reject his version that he intended to strike the hand but missed, his intention was to overcome any resistance thus he targeted the throat. To confirm his warped intentions, he went on to search the deceased for whatever he could find. He left the deceased groaning in pain. This was merciless and cruel conduct by the accused on a person he knew. The offence was committed with actual intention. Accordingly, the accused is found guilty of murder with actual intention. SENTENCING JUDGMENT [46] The accused was convicted with murder. He committed the murder in the course of a robbery. After stabbing the deceased, he searched the body and took the deceased’s cellphone. His target was to get money from the deceased. He went away leaving the deceased groaning in pain. [47] The court must make a finding if the offence was committed in aggravating circumstances in terms of s47(4) of the Criminal Code. Where there are aggravating factors, the court has no choice but to impose a minimum sentence of 20 years. The Act has listed some of the aggravating factors under subsection 2 thereof but the factors are not exhaustive. [48] Both counsels addressed the Court on aggravating circumstances unfortunately the defence was purely misguided, it opted to remain focused on the accused’s defence and on those facts submitted that there were no aggravating factors since the deceased attacked the accused. I must point out that legal practitioners are officers of the Court and must know better that once a judgment has been issued, they address the case as per the findings of the Court. That they do not agree with the Court is the reason why an appeal court exists. In this case due to the approach taken by the defence, regrettably the defence did not properly address the pertinent issues. [49] We are in agreement with Mr Nikisi that the offence was committed in aggravated circumstances. Where a murder is committed in the course of a robbery then it is committed in aggravating circumstances in terms of s47 (2) (a) (iii) of the Criminal Code. [50] In terms of Section 12 of the Sentencing Guidelines prior to sentencing an offender, a court shall inquire into and investigate the characteristics of the offender including his or her social background; the characteristics of the victim(s) of the offence including the impact of the offence on the victim(s); the probability of the offender reoffending; the desirability or need to protect the victim(s) or society from the offender among other considerations. Such an inquiry is mandatory. The reasons for making such an inquiry peremptory are succinctly stated in S v Blessed Sixpence and Others HH 567/23. Where an accused is represented, the legal practitioner must canvass all the information from the accused. [51] The accused took to the witness stand and Mr Chamutsa addressed the court thereafter. The accused was led to regurgitate his defence outline this was unnecessary as the Court had already made its findings. The information required at this stage must be canvassed along the guidelines under s12. For instance, it could have benefitted us to know why the accused then searched the deceased and claimed the phone as his. His social background. Why he chose to keep quiet about the offence. Whether he is a person of a violent nature. [52] The defence also called the accused’s father who told the court that the deceased’s family took them to the local courts where they were ordered to pay 15 beasts. They have been paid. As a family they also assisted during the funeral. The witness was again led to give evidence on the commission of the offence. We wondered what Mr Chamutsa intended to achieve particularly in view of the caution given to the defence when the accused addressed the Court. [53] On its part the State lead evidence from the deceased’s relative. She confirmed that the accused’s family paid compensation. On the impact on the family, she said the wife has since returned with her children to her family. The deceased was the bread winner and obviously his family will stand to suffer. We wondered whether the deceased’s immediate family, his dependants (the wife and children) would benefit from the beasts since they have relocated. Obviously, this is beyond this Court’s mandate but we can only comment that since the parties appeared before the local courts that court may have a say on how the deceased’s family may benefit. [54] The State urged the court to impose a sentence between the range of 20 to 25 years since the murder was committed in aggravating circumstances. The State referred us to the case of S v Moyo HB 169/17 where the court held that murder committed in the course of a robbery is murder with actual intention The court imposed a sentence of 35 years imprisonment. We were not persuaded by the submissions of the State on this point. Each case depends on its peculiarities. There are mitigatory factors that warrants the departure from the range submitted by the State. [55] The accused is a youthful first offender. He committed this offence out of sheer greediness. He robbed a person he knew and had drunk beer with. He was also drunk. As correctly pointed out by the defence counsel, Courts do not distinguish the extent of intoxication in mitigation See S v Mupatutsa HCC43/23. If there is evidence that the accused was intoxicated then that suffices as mitigatory. [56] What is probably highly mitigatory in this case is that the accused’s family has paid compensation in full. We received evidence on oath from both the accused’s father and the deceased’s cousin sister that compensation was demanded and paid. The deceased’s sister has concerns about the health of some of the cattle but we take note that the accused’s family has shown positive will and have paid. That the cattle are sickly is a different issue that should not affect the sentence. The Courts reward such positive efforts. We accept that the compensation does not bring back life but it brings some closure just like the criminal proceedings they bring closure to the deceased’s family. [57] The defence urged the court to impose a sentence of 15 years since there are mitigatory factors as set out in the sentencing guidelines that the deceased contributed to his death. As already stated, this was a misguided submission and cannot be taken into account. [58] Since the offence was committed in aggravating circumstances the Court’s discretion is fettered and operates from 20 years. This is because where a murder is committed in aggravating circumstances the court shall sentence the offender to death, imprisonment for life or imprisonment for any definite period of not less than twenty years. So, 20 years is the minimum. The death penalty has since been outlawed what remains is for the amendment of the law. [59] In this case we are not inclined to increase the sentence from the legislative minimum sentence due to the compensation paid. The accused and by extension have family have felt the impact of the offence. Accordingly, the following sentence is imposed; Sentence 20 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Chamutsa & Associates, accused’s Legal Practitioners 7 HCC 17/25 HCCR 131/25 7 HCC 17/25 HCCR 131/25 THE STATE Versus SAURO SHEZHU HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 25 February,10 & 19 March 2025 Assessors: 1. Mr. Manyangadze 2. Mrs. Mateva Criminal Trial R. Nikisi, for the State T. K. Chamutsa, for the accused MUZOFA J: [1] On the 20th of August 2024 Nyikadzino Matanhire, the deceased was said to be in a jovial mood, drinking beer with his friends including the deceased and singing gospel music at Jupiter Bar Norton. Unbeknown to him, these were the last beautiful memories he left his beloved friends with. When the merrymakers left the bar, each to their place, the accused stabbed the deceased once on the throat and once on the back. He died on the spot. [2] For his conduct the accused was charged with murder in contravention of s47 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23] “the Criminal Code’. [3] The accused pleaded not guilty. He essentially raised two defences, self-defence and intoxication. In his brief defence outline he indicated that he fought with the deceased for no reason. He then stabbed the deceased. He intended to stab him on his hand but missed and stabbed him on the neck. The defence outline was tendered and marked annexure “B’ [4] The background facts to this case are largely common cause. It is for this reason that the State and the defence came up with a statement of agreed facts which was marked annexure ‘A’. The following was recorded as common cause. The accused and the deceased were known to each other. They lived in the same community in Norton. The accused resided at Plot A4 Jinxtown Farm, Norton. [5] On the 20th of August they drank beer together with other patrons at Jupiter Bar, Norton. When the bar closed, they left. The accused, deceased and one Stepmore Mutandawari walked together back home. Stepmore parted ways with the two, branching off to his place. [6] The accused and the deceased continued walking to their homes. The State and the defence agreed that along the way the deceased attacked the accused using a knife. The accused overpowered the deceased, took the knife and stabbed the deceased. At the end of the proceedings we came to a different finding on this aspect and we shall address the issue later the judgment. The State Case [7] Most of the State witnesses’ evidence was admitted. This is a matter that could have proceeded by way of a plea of guilty but for the fact that, murder cases cannot proceed as such. This is because the State must prove the intention and it can only be done through leading evidence. [8] The evidence of eleven witnesses was admitted in terms of s314 of the Criminal Procedure and Evidence Act. These were Mary Tembo, Taurai Kitchen, Takesure Kandira, Masauso Bankis, Letwin Mapengo, Christohper Nyamutenha, Paid Nyenge, Epiphania Munoda, Prosper Tsvangirai, Shamiso Chowe and Doctor Mukonyonyara. 8.1 Mary Tembo She resides at Plot 14 Hill view Farm, Norton and employed at Jupiter Bar as a bar attendant. She knew the deceased and the accused as patrons at the bar. On the 20th of August 2024 she was on duty at the bar. The deceased drank beer with Stepmore Mutandawari together with other patrons. The deceased later joined the now deceased and his colleagues. She observed that the deceased was in a very jovial mood singing gospel music with his colleagues. At the close of the bar the deceased, accused and colleagues left the bar at around 2245 hours. 8.2 Taurai Kitchen He resides at Plot 48 Jinxtown Farm, Norton. On the 21st of August 2024 at around 0700 hours while walking on a strip road in Plot 28 Jinxtown Farm he stumbled upon the body of the deceased lying facing downwards in a pool of blood. He identified the deceased as his brother in law. He notified other villagers and the Village head Takesure Kandira about the incident. 8.3 Takesure Kandira He resides at Plot 24 Jinxtown Farm, Norton and the village head at Jinxtown Farm. On the 21st of November 2024 Taurai Kitchen reported to him about the deceased. He rushed to the scene and also reported the matter at Norton Rural police. While at the scene of crime a group of young men brought the accused. They had a blood-stained homemade knife which was recovered from the accused and a black KGtel cell phone. The items were handed over to Sergeant Munoda. 8.4 Bankis Masauso He resides at Plot 28 Jinxtown Farm, Norton. When he received news of the deceased’s death, he went to the scene of crime. He gathered news that the accused was the last person seen with the deceased. He did not waste time, he was proactive about the situation, he organized a group of young men to track the accused person. They went to the accused’s place. They could not find him. They continued to search for him until they waylaid him and arrested him. The accused had left the complainant’s Kgtel cell phone with a security guard at Nyauma Farm for charging. He recovered the cell phone. At the accused’s homestead he recovered a homemade knife from the accused’s thatch roofed bedroom, a t- shirt inscribed ZANU – PF and white shoes with erased blood spots. The items were later handed over to Sergeant Munoda. 8.5 Christopher Nyamutenha A duly attested member of the Zimbabwe Republic Police. He was stationed at Manyame Police at the time the offence was committed. On the 21st of August 2024 he ferried the body of the deceased from Jinxtown Farm to Norton Hospital mortuary. 8.6 Proud Nyenge A member of the Zimbabwe Republic Police based at Norton Rural at the time. On the 21st of August 2024 while at the scene of crime the accused was brought by members of the public and he made indications freely and voluntarily. He witnessed the accused person being warned and cautioned by Sergeant Munoda on the 22nd of August 2024. The accused made his statement freely and voluntarily in his presence. 8.7 Epiphania Munoda She was a Sergeant in the Zimbabwe Republic Police based at Norton Police, she attended the scene of crime following a report that was made. Together with other officers they proceeded to the scene of crime where they found the deceased lying on the ground along a footpath in Plot 20 Jinxtown Farm. She observed that the deceased had a cut on the throat and a small cut on the back. After a while the accused was brought by Bankis Masauso and a group of young men. He was the suspect in this case. She was also handed over a homemade knife recovered from the accused’s thatched bedroom hut and a black Kgtel cell phone imei numbers 353990741290493 and 53990741290501. She later recorded statements from the accused and witnesses. The accused made indications without any coercion. She drew a sketch plan from the indications. The accused’s statement was later confirmed by a Magistrate. 8.8 Prosper Tsvangirayi A mortuary attendant who received the deceased’s body at Norton Hospital He later handed over the deceased’s body to Sergeant Munoda on the 26th of August 2024 who conveyed the deceased to Sally Mugabe Hospital for a post mortem examination. 8.9 Doctor Mukonyora A duly registered medical practitioner based at Norton Hospital. On the 21st of August 2024 he certified the deceased dead. 8.10 Shamiso Chowe A duly attested consultant doctor. On the 26th of August 2024 at the request of ZRP Norton Rural she conducted a post mortem examination on the remains of the deceased. After her examination she opined that death was due to (i) hemorrhagic shock and (ii) penetrating throat injury. [9] The State also produced the following exhibits by consent of the defence; The accused’s confirmed warned and cautioned statement. This is what the accused said in his response to the charge; “I admit to the charges levelled against me I was drinking beer together with the deceased at Jupiter Bar on Tuesday 20 August 2024 at around 12 midnight. When we were drinking beer, the deceased produced US$100.00 from his pocket. When we were going home together with the deceased, I decided to leave him behind and went ahead to hide in the bush intending to take the money which I had earlier seen in his possession. When he arrived where I was hiding, I stabbed him twice on the neck with my knife which I was holding. He staggered a few metres and fell down. I then searched all his pockets and found his cellphone only and took it leaving (sic) crying stating that I have hurt him.” The post mortem report in which Doctor Shamiso Chowe who examined the deceased’s remains concluded that death was due to haemorrhagic shock and penetrating throat injury. The sketch plan drawn from indications made by the accused and one witness Kitchen Taurai. A black KG cellphone, a black handled homemade kitchen knife, a yellow t-shirt inscribed ZANU PF, a pair of black and white shoes which marked exhibits 6, 7, 8 and 9. [10] One witness gave oral evidence. Stepmore Mutandawari [11] He was the deceased’s friend. He grew up together with the accused in the same area in Norton. On the fateful day he was drinking beer with the deceased and other colleagues at Jupiter Bar. The deceased bought beer. They were drinking super chibuku. Initially the accused was standing nearby, he later joined them. He brought his chibuku beer and was drinking it. [12] When the bar closed, he left together with the accused and deceased since they lived in the same area. The accused had a plastic bag. They walked about a kilometre and he parted ways with the two, the accused and deceased. [13] The following day he was advised of the deceased’s death. He went to the scene of crime and indeed confirmed that the deceased had died. He did not know whether the accused or the deceased had a knife. He did not know what happened between the accused and the deceased. Under cross examination he said the deceased used US$3.00 to purchase beer and had US$10.00 probably that he remained with. [14] His cross examination did not elicit much information except that the deceased had US$10.00 and US$3.00 to purchase the beer. [15] The State then closed its case. Defence Case [16] The accused adopted his defence outline. He opted not to add or subtract anything from his defence outline. [17] Under cross examination the accused admitted stabbing the deceased on the neck, taking the deceased’s cellphone and that there was no bad blood between them. He said the deceased from nowhere tripped him and drew a knife to stab him. He over powered the deceased, took the knife and stabbed the deceased. He intended to strike the hand but missed and struck the neck since it was dark. He also alleged that he was assaulted by the youth that arrested him. They forced him to admit the charges and caused him to sing a song confessing that he was the murderer. When the police eventually arrested him, he admitted the charges since he was afraid of the youths that had assaulted him. He denied that he had a plastic bag at the bar. He also denied that he saw any money on the deceased. The Closing Submissions [18] Both the State and the defence filed their closing submissions. The State identified three issues for determination, whether self-defence is applicable in this case, whether intoxication is a defence to reduce the offence of murder to culpable homicide and whether there was evidence to prove the accused’s guilt beyond reasonable doubt. [19] On the issues identified the State urged the court to dismiss the alleged self-defence primarily because it was an afterthought. The accused admitted the offence in his confirmed statement. On intoxication, that the accused was not intoxicated, and it is not a complete defence. We were urged to find the accused guilty as charged since there was overwhelming circumstantial evidence coupled with the admission in the accused’s statement. [20] The State in its wisdom decided to completely ignore the statement of agreed facts that it produced. It neither recanted it nor abide by it in specific terms. It simply departed from the agreed facts. We say this because once it admitted that the deceased had the knife and the aggressor then the defence of self-defence would probably partially succeed since there was no eye witness to controvert the accused’s version of what transpired. However, our assessment of what transpired from the facts does not confirm that the deceased was the aggressor. [21] On the other hand, the defence relied on the statement of agreed facts made by the parties. In that statement included is a statement that the deceased had the knife which he used to attack the accused. On that basis the defence capitalised on the issue and submitted that the State cannot resile from the statement of agreed facts. The State is bound by its admission. On that basis since the accused acted in self-defence, he must be found guilty of culpable homicide. Analysis [22] The issues for determination present themselves as follows: Whether or not the court is bound by the statement of agreed facts. Whether the accused acted in self-defence. Whether intoxication is a defence in this case. The Statement of Agreed Facts [23] A Statement of agreed facts is entered under two circumstances firstly where the parties agree on what transpired or where the parties engage in plea bargaining. It the first scenario the statement may be used to narrow issues for determination during trial or the facts are common cause or where the State does not have evidence to rebut the accused’s assertions. [24] In plea bargaining, the accused tenders a plea of guilty to the lesser charge and the State accepts the facts as stated by the accused. In most instances this process results in a plea to culpable homicide. In this case the accused did not tender the limited plea neither did the parties agree on it. We therefore take it that the statement of agreed facts was meant to streamline the issues for determination before the court. [25] The issue that arises in this case is whether the Court is bound by the statement of agreed facts in such circumstances. The State represents public interest when prosecuting matters. The admissions it makes therefore must be well informed and in accordance with the proper administration of justice. The benchmark is whether the admissions are supported by the evidence. The State cannot make admissions on issues that are contrary to the established facts. [26] The duty of the court is to make sure that justice is seen to be done. This is why even where the State and defence agree to the lesser offence of culpable homicide, the court must exercise its mind on the propriety of the concession. This is the approach in this jurisdiction and is evident in a plethora of cases where a plea to the lesser charge of culpable homicide is accepted by the State. See for instance S v Dube HB 56/18, S v Sibanda HB 93/16. [27] In this case from nowhere the State conceded that the deceased attacked the accused. We were not told that the State no longer relies on the warned and cautioned statement. What informed the State to make such a concession? Is it because the dead do not speak? How could the State place before the court contradicting information? To achieve what purpose? As a court we urge the State to properly assess the facts before making admissions. Similarly, both the State and the defence must objectively apply their minds to the facts and come up with legally sound admissions. There was no plea bargaining here so why compromise the facts? [28] The Court is at large to make its own assessment based on the facts before it and come to a judicious decision. In any event the parties did not agree on which charge the accused must be convicted of. That area still remains in the domain of the Court. [29] In this case, as we will demonstrate the accused was the owner of the knife, the evidence speaks for itself. To conclude otherwise would be a travesty to justice. We therefore come to the conclusion that the Court is not bound by the statement of agreed facts filed by the parties. Whether the accused acted in self defence [30] The accused did not act in self-defence at all. Firstly, the admitted confirmed warned and caution which was not challenged outlines exactly what transpired on the night in question. Although the accused tried to clutch at straws at the end of the trial under cross examination and stated that he was assaulted by the people who arrested him we were not persuaded. [31] The warned and cautioned statement presents the accused’s first response to the charge. An accused is expected to mention all the relevant facts pertaining to the offence. He did not mention that the deceased had the knife and attacked him. An accused is not obliged to say anything in answer to the allegations against him or her in his or her warned and cautioned statement, however his or her failure to mention any facts relevant to his or her defence may result in the court drawing inferences which can be treated as evidence corroborating other evidence against him or her. See s 257 of the CPEA and John Reid Rowland Criminal Procedure in Zimbabwe LRF 1997 @ 20-23, S v Jekiseni HH429/23. The accused discredits himself or herself if he or she fails to mention relevant facts that are material to his or her defence in the warned and cautioned statement and only raises them later at trial. [32] In this case the accused gave different versions as to what transpired on the night in question. In his statement to the Police, he said he attacked the deceased with a knife searched him and took his phone. In his defence outline which he gave to his legal practitioner he said they fought with the deceased for no apparent reason. He did not mention that the deceased attacked him. He did not mention that the deceased used a knife. He opted not to add anything in his evidence in chief. It was only under cross examination that he said he was attacked by the deceased. His inconsistent statements leave us with no option but to draw an adverse inference against him, he is not truthful we reject his explanation given under cross examination and the defence outline. [33] We accept the version in his statement to the Police. This is because in his defence outline the accused did not challenge his statement. Why did he not advise his legal practitioner about the assault by the youth that effected arrest and how that influenced the confirmation proceedings. In any event, he did not allege any influence by the recording details. The statement was recorded at ZRP Norton rural away from where the youth were. He did not explain why he did not disclose that to the court during confirmation proceedings. What he alleges now clearly it is an afterthought. [34] The circumstantial evidence also confirms that the accused was the owner of the knife. Firstly, if the deceased was the owner of the knife why would accused take it with him to his place of residence. The knife was recovered stashed on his thatch grass roof. Secondly if the accused had been attacked and mistakenly stabbed the deceased on the neck why is it he did not advise anyone about the mishap? Thirdly why did the accused take the deceased’s cellphone? The accused without a blink took the cellphone and gave it to a security guard for charging. He claimed it was his. The accused had a plastic bag at the bar the deceased did have any bag or anything where he could have put the knife as they walked back home. The knife produced before the court cannot possibly fit in a pocket. The only reasonable inference is that it was in the plastic bag. [35] In our view the pieces of evidence taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the offence was committed by the accused and point to the accused as the owner of the knife. They unerringly satisfy the requirements of circumstantial evidence that there must be proved facts and that the proved facts must admit of only one inference sought to be drawn. See S v Shoniwa 1987 (1) 215 (SC) and cases cited therein. Intoxication [36] Essentially in crimes of specific intention intoxication can at most be a partial defence in terms of s221 (1) of the Criminal Code. It is not a complete defence. [37] Professor G. Feltoe, in his book A Guide to the Criminal Law of Zimbabwe, 3rd Edition Legal Resources Foundation, at page 22 makes the important observation that the court must therefore explore carefully the actual effect upon the accused of his consumption of liquor or drugs. The learned author goes on to say: “Liquor and drugs affect different people in different ways. It may be that, although he consumed a considerate amount of liquor, the liquor did not remove his ability to discern what he was doing and he was still able to form the intention to commit the crime. Some people became easily intoxicated and become drunk after consuming a small amount of liquor and others are able to consume a considerate amount of liquor and still remain in control over their mental faculties”. [38] As properly submitted by the State, there was no evidence that the accused was so drunk that he lost self-control. He knew exactly what he was doing. He was in the bar initially observing what was happening, he joined the deceased and others. When they were leaving, he remembered to pick his plastic bag. He walked without incident of a drunken, hopeless person with Stepmore and the deceased for about a kilometre. After committing the offence, he remembered the purpose of the attack on the deceased that is why he searched the deceased. He also remembered to take his knife home. He stashed the knife on the roof. Knives are usually kept in the kitchen but this one was found on the roof of his bedroom. The accused could have planned to conceal the knife. All this point to an alert mind that knew what it was doing as opposed to an overly drunk person. [39] On his part the accused did not put much emphasis on the defence. He did not tell the court that he was too drunk. Under cross examination he admitted that he was voluntarily intoxicated. They had finished a six pack of opaque beer. He evaded the question whether he was still in control of his senses. The defence of intoxication is not applicable in this case. The Evidence [40] We have no doubt that the State proved its case beyond a reasonable doubt. The accused admitted having committed the offence. He did not challenge the statement as envisaged under the proviso to s256 (2). In terms of that provision, an accused is still at large to challenge a confirmed statement, he does this by giving evidence how his freewill was interfered with in making the statement. In this case nothing was placed before the court except some response under cross examination. That is wholly inadequate. [41] In terms of s273 of the CPEA it is competent for a court to convict any person by reason of a confession provided there is evidence aliunde that the offence was committed. In this case the post mortem report confirms that the deceased did not die of natural causes. He died of stab wounds synonymous with what the accused described in his statement. [42] Besides the confession the circumstantial evidence already aliunded to shows that the accused committed the offence. The accused was the factual cause of the death. [43] On intention, the court cannot possibly get inside the accused’s mind. It considers the circumstances surrounding the commission of the offence. The weapon used, the number of blows, the body parts targeted and the accused’s conduct before and after the commission of the offence. [44] We find that the accused had the actual intention to kill. He watched the deceased at the bar and picked his target to attack. He had his knife that he used. His intention as admitted was to immobilise the deceased to rob him. This is a clear case of a murder in the course of a robbery. The deceased had a shallow cut on the back. The probabilities are that he could have been attacked while he walked away from the accused or was trying to escape. The second cut was described as; “deep cut on the throat severing the trachea and right caratid vessels into the right hemithorax to the intercostal space 3rd and 4th ribs” [45] The deep cut implies that so much force was applied on a very vulnerable part of the body. It was so deep that it severed the throat right into other internal organs. In our view the accused exerted one blow to deal with the deceased in one thrust. We reject his version that he intended to strike the hand but missed, his intention was to overcome any resistance thus he targeted the throat. To confirm his warped intentions, he went on to search the deceased for whatever he could find. He left the deceased groaning in pain. This was merciless and cruel conduct by the accused on a person he knew. The offence was committed with actual intention. Accordingly, the accused is found guilty of murder with actual intention. SENTENCING JUDGMENT [46] The accused was convicted with murder. He committed the murder in the course of a robbery. After stabbing the deceased, he searched the body and took the deceased’s cellphone. His target was to get money from the deceased. He went away leaving the deceased groaning in pain. [47] The court must make a finding if the offence was committed in aggravating circumstances in terms of s47(4) of the Criminal Code. Where there are aggravating factors, the court has no choice but to impose a minimum sentence of 20 years. The Act has listed some of the aggravating factors under subsection 2 thereof but the factors are not exhaustive. [48] Both counsels addressed the Court on aggravating circumstances unfortunately the defence was purely misguided, it opted to remain focused on the accused’s defence and on those facts submitted that there were no aggravating factors since the deceased attacked the accused. I must point out that legal practitioners are officers of the Court and must know better that once a judgment has been issued, they address the case as per the findings of the Court. That they do not agree with the Court is the reason why an appeal court exists. In this case due to the approach taken by the defence, regrettably the defence did not properly address the pertinent issues. [49] We are in agreement with Mr Nikisi that the offence was committed in aggravated circumstances. Where a murder is committed in the course of a robbery then it is committed in aggravating circumstances in terms of s47 (2) (a) (iii) of the Criminal Code. [50] In terms of Section 12 of the Sentencing Guidelines prior to sentencing an offender, a court shall inquire into and investigate the characteristics of the offender including his or her social background; the characteristics of the victim(s) of the offence including the impact of the offence on the victim(s); the probability of the offender reoffending; the desirability or need to protect the victim(s) or society from the offender among other considerations. Such an inquiry is mandatory. The reasons for making such an inquiry peremptory are succinctly stated in S v Blessed Sixpence and Others HH 567/23. Where an accused is represented, the legal practitioner must canvass all the information from the accused. [51] The accused took to the witness stand and Mr Chamutsa addressed the court thereafter. The accused was led to regurgitate his defence outline this was unnecessary as the Court had already made its findings. The information required at this stage must be canvassed along the guidelines under s12. For instance, it could have benefitted us to know why the accused then searched the deceased and claimed the phone as his. His social background. Why he chose to keep quiet about the offence. Whether he is a person of a violent nature. [52] The defence also called the accused’s father who told the court that the deceased’s family took them to the local courts where they were ordered to pay 15 beasts. They have been paid. As a family they also assisted during the funeral. The witness was again led to give evidence on the commission of the offence. We wondered what Mr Chamutsa intended to achieve particularly in view of the caution given to the defence when the accused addressed the Court. [53] On its part the State lead evidence from the deceased’s relative. She confirmed that the accused’s family paid compensation. On the impact on the family, she said the wife has since returned with her children to her family. The deceased was the bread winner and obviously his family will stand to suffer. We wondered whether the deceased’s immediate family, his dependants (the wife and children) would benefit from the beasts since they have relocated. Obviously, this is beyond this Court’s mandate but we can only comment that since the parties appeared before the local courts that court may have a say on how the deceased’s family may benefit. [54] The State urged the court to impose a sentence between the range of 20 to 25 years since the murder was committed in aggravating circumstances. The State referred us to the case of S v Moyo HB 169/17 where the court held that murder committed in the course of a robbery is murder with actual intention The court imposed a sentence of 35 years imprisonment. We were not persuaded by the submissions of the State on this point. Each case depends on its peculiarities. There are mitigatory factors that warrants the departure from the range submitted by the State. [55] The accused is a youthful first offender. He committed this offence out of sheer greediness. He robbed a person he knew and had drunk beer with. He was also drunk. As correctly pointed out by the defence counsel, Courts do not distinguish the extent of intoxication in mitigation See S v Mupatutsa HCC43/23. If there is evidence that the accused was intoxicated then that suffices as mitigatory. [56] What is probably highly mitigatory in this case is that the accused’s family has paid compensation in full. We received evidence on oath from both the accused’s father and the deceased’s cousin sister that compensation was demanded and paid. The deceased’s sister has concerns about the health of some of the cattle but we take note that the accused’s family has shown positive will and have paid. That the cattle are sickly is a different issue that should not affect the sentence. The Courts reward such positive efforts. We accept that the compensation does not bring back life but it brings some closure just like the criminal proceedings they bring closure to the deceased’s family. [57] The defence urged the court to impose a sentence of 15 years since there are mitigatory factors as set out in the sentencing guidelines that the deceased contributed to his death. As already stated, this was a misguided submission and cannot be taken into account. [58] Since the offence was committed in aggravating circumstances the Court’s discretion is fettered and operates from 20 years. This is because where a murder is committed in aggravating circumstances the court shall sentence the offender to death, imprisonment for life or imprisonment for any definite period of not less than twenty years. So, 20 years is the minimum. The death penalty has since been outlawed what remains is for the amendment of the law. [59] In this case we are not inclined to increase the sentence from the legislative minimum sentence due to the compensation paid. The accused and by extension have family have felt the impact of the offence. Accordingly, the following sentence is imposed; Sentence 20 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Chamutsa & Associates, accused’s Legal Practitioners