Court name
Supreme Court of Zimbabwe
Case number
SC 33 of 2005
Crim. Appeal 273 of 2002

S v Gochera (73/02) (SC 33 of 2005, Crim. Appeal 273 of 2002) [2005] ZWSC 33 (05 September 2005);

Law report citations
Media neutral citation
[2005] ZWSC 33


DISTRIBUTABLE (27)




















Judgment No
SC 33/05


Crim. Appeal No 273/02

















WISDOM
GOCHERA v THE STATE








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
MALABA JA & GWAUNZA JA


HARARE JUNE 27 &
SEPTEMBER 6, 2005








A. Nyikadzino,
for the appellant





R.K. Tokwe, for
the respondent












CHIDYAUSIKU CJ: The appellant in this case was charged with
murder. He pleaded not guilty but was found guilty of murder
with
actual intent. He was found guilty of murdering Karen Da Nobrega
Guilherme, a co-worker.





It is common cause in
this case that the deceased died as a result of the assault upon her
by the appellant. What was at issue
in the court a quo were
the precise circumstances of the killing of the deceased. The
appellant admitted assaulting the deceased at the back of her
head
with a dust bin and that she died as a result of this assault. He
raised two defences to the charge of murder, namely, self-defence
and
provocation. The court a quo rejected both defences. The
court concluded that the appellant had deliberately killed the
deceased in order to steal the money
that the deceased was counting.






The trial court found the following facts as proved.





The appellant and the
deceased were both employed by Spoornet International Railways, the
former as a messenger and the latter as
executive secretary to the
business manager. Spoornet International Railways is situated on
the 9th Floor, Century Towers, Samora Machel Avenue in
Harare and that is where both the deceased and the appellant worked.





On 18 September 2001
the deceased reported for work at about 6.30 hours. She went into
her office and commenced her duties. The
appellant followed her to
her office a couple of minutes later. When the appellant got into
the deceased’s office she was counting
some money. The appellant
took a wooden dust bin and struck the deceased upon the head causing
a fracture to the skull. The
deceased died almost instantly.





As the deceased lay
dead the appellant stole from her US$4 325, Z$525, a cell phone and a
blank cheque. Part of the property was
recovered at the instance of
the appellant upon his arrest.





The deceased was the
first person to report for duty at around about 6.30 hours in the
morning. The appellant was the second person
to report for duty
after the deceased. He proceeded to the 9th Floor and
after spending a few minutes there, he came down and enquired from
the security guard to the building, if he had seen the
deceased.





The body of the
deceased was discovered by her immediate boss, Mr Matthew Senga,
after he entered into her office some time around
about 8.10 hours.
It was observed that the company’s petty cash box and a cheque book
were on the floor beside the chair on which
the deceased was seated.
The deceased’s co-workers, including the appellant, gathered
around the deceased’s office. The appellant
never volunteered any
information concerning what had transpired between him and the
deceased. He, in fact, pretended to be taken
aback by the discovery
of the deceased. The appellant’s co-workers detected nothing
amiss about the appellant’s demeanour until
he was approached by
the police officer, Tawanda Munongi, who then noticed that the
appellant was nervous and shivering.





The appellant was taken
by the police for questioning since he had been the next person to
enter the office after the deceased.
He was searched and found in
possession of US$4 325 which was hidden in his underwear. The
money was stolen from the deceased.
Following this discovery and
upon being questioned to account for his movements on that morning
the appellant confessed that he
had fatally assaulted the deceased.
He subsequently elected to make indications which resulted in items
originating from the deceased’s
office being recovered from the
appellant’s person and different places where he had dropped them
soon after committing the offence.





The post mortem report
indicates that the deceased died as a result of a fractured skull and
haemorrhage caused by a blunt instrument
and that the deceased’s
death was a direct result of the severe attack perpetrated on her by
the appellant.





The appellant, as I
have said, did not deny causing the death of the deceased. He
raised two defences to the charge of murder, namely,
self defence and
provocation. The record reveals that the appellant gave, on several
occasions, conflicting versions of how and
why he assaulted the
deceased. This led the court a quo to reject the appellant’s
evidence and both defences raised. Indeed the court a quo
concluded that the appellant was a liar who could not be believed.
The learned trial judge, after a very careful analysis of the
appellant’s evidence, made the following assessment of the
appellant as a witness and the defences he raised:-






“… the picture painted here undoubtedly leads us to conclude that
accused lied in his evidence. What emerges from all this,
is clear
that accused killed the deceased so that he could have the money he
found her counting on top of her desk. He wanted to
rob her of this
money by use of force. Having done that, accused tried to cover up
for his crime. He tried to make it appear
that there had been no
scuffle whatsoever. He locked all doors and closed all the blinds.
He wanted things to appear as if all
was well when Babra Mukoko
arrived. He sat by the reception reading the paper as if nothing
had happened.





The closing of the
blinds was obviously meant to conceal what was inside. He decided
to take the bunch of keys Karen used and throw
it down the air pipe,
so that no suspicion would fall upon him as the person who had locked
up all those doors. He stole Karen’s
cell phone and took it away
and up to to-day that cell phone has not been found. Instead, in an
effort to cover up for that cell
phone, he took the cell phone pouch
and threw it into a dust bin which was what the police recovered to
make it appear as if the
cell phone was also thrown into that dust
bin. He attempted to hide the money which he had stolen from Karen.
If the police had
not searched him, that money would not be here
to-day.





Accused demonstrated a
clear intention to kill somebody in cold blood. He struck Karen
when she was not suspecting anything the
back. The post mortem
report and the evidence of the doctor cannot be faulted …





The accused
deliberately and intentionally struck Karen on the part of the head
which he knew was very delicate.”









The learned judge’s approach and analysis of the evidence cannot be
faulted.







Indeed Mr Nyikadzino, who appeared for the appellant, conceded
that he was unable to make any meaningful submissions in respect of
conviction. He abandoned
his written heads of argument. The
concession was properly made, in my view, having regard to the
overwhelming evidence against
the appellant. His poor showing as a
witness led to the collapse of the two defences he sought to raise.





There is no possible
basis for interfering with the verdict in this case and, accordingly,
the appeal against conviction fails.





The trial court found
that there were no extenuating circumstances and sentenced the
appellant to death. In his ruling on extenuation
the learned judge
had this to say:-






“There is no element of extenuation whatsoever in this matter and
under those circumstances we can proceed to mitigation.”









The trial court, having found that the appellant killed the
deceased with actual intent in order to steal the money she was
counting,
it is difficult to see how it could have found extenuating
circumstances. There is nothing really that can be said for the
appellant.
He killed the deceased in order to effect the theft. I
agree with the learned trial judge that there are no extenuating
circumstances
in this case.





In the result the
appeal against both conviction and sentence is dismissed.











MALABA JA: I
agree.








GWAUNZA JA: I
agree.












Pro Deo