Extenuation in murder cases (Zimbabwe)

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Persons upon whom will be imposed

In Zimbabwe, unless X is a pregnant woman or is under sixteen, the court must impose the death sentence upon a person found guilty of murder where there are no extenuating circumstances. It is therefore vitally important for defence lawyers to be conversant with what factors are likely to constitute extenuating circumstances. These factors are dealt with in detail in an article entitled "Extenuating Circumstances: A Life and Death Issue" in 1986 Volume 4 Zimbabwe Law Review 60. Particular note should be made of the fact that diminished mental responsibility, which falls short of constituting a mental disorder attracting a special verdict, may still constitute an extenuating circumstance. By whom decision is made

In Jaure 2001 (2) ZLR 393 (H) the court pointed out that a murder trial concludes with the decision on whether or not there are extenuating circumstances. That question must be decided by the majority view of the court, that is to say the judge and the assessors, even if the judge is in the minority. The death sentence may still be imposed after the judge and assessors have found that extenuating circumstances exist, if the judge concludes that the extenuating circumstances are far outweighed by the aggravating features; that is a matter for the judge alone though the assessors may give informal opinions on the issue to the judge.

Onus of proof

In Jaure 2001 (2) ZLR 393 (H) it was observed that although the onus of proof of extenuating circumstances is said to be on the accused, counsel for the State can and should assist the court in arriving at an informed decision on extenuation. The court should examine all the evidence and consider whether extenuating circumstances are shown on a balance of probabilities, regardless of who produced the evidence.

Cumulative effect of all factors

In deciding whether there are extenuating circumstances, the court must consider the cumulative effect of all possible extenuating circumstances and must not consider and dismiss each factor in isolation: Sigwahla 1967 (4) SA 566 (A) at 571 and Jaure 2001 (2) ZLR 393 (H)

Two approaches

In Jaure 2001 (2) ZLR 393 (H) the court pointed out that there are two approaches for determining whether or not a murder was committed with extenuation. Either approach is permissible and the end result should be the same. The court stated that these two approaches were captured in Reid Rowland Criminal Procedure in Zimbabwe at pp 25-36 as follows: "The first approach is to consider, first, all those factors which reduce the moral blameworthiness of the accused. If, in the opinion of the court, the facts so warrant, it should find that extenuating circumstances exist. The approach at this stage is largely subjective and aggravating features, many of which may be of an objective character, are not considered. The second stage is then to decide on sentence. At this stage, all aggravating features, including the brutality of the crime and all those objective factors which would assist in the determination of the sentence, are considered. The court may well then decide that, despite the existence of extenuating circumstances, they are outweighed by the aggravating circumstances and the accused should be sentenced to death. The second approach is for the court to consider all the usual factors which may be regarded as extenuating and weigh them against the aggravating features. If the court considers that the aggravating features outweigh those which reduce the accused's moral blameworthiness, the court will find that extenuating circumstances do not exist. If the court is of the opinion that aggravating features do not outweigh those which reduce the accused's moral blameworthiness, it will find that extenuating circumstances do exist."

Whether death penalty imposable if extenuating circumstances found

In Jaure 2001 (2) ZLR 393 (H) the court pointed out that he death sentence may still be imposed after the judge and assessors have found that extenuating circumstances exist, if the judge concludes that the extenuating circumstances are far outweighed by the aggravating features

Mental instability short of insanity

If there are indications of mental instability on the part of X, this matter should be investigated. Odd, inexplicable and bizarre behaviour before, during or after the killing or from the way in which X instructs his lawyer or the way in which he behaves cannot be ignored, as it may provide the basis for establishing that there was at least diminished responsibility to an extent which constitutes extenuation. The defence lawyer has a duty to pursue this matter and to ask for a psychiatric examination where appropriate. The psychiatrist who carries out this investigation must be asked not only to give an opinion as to whether X was mentally irresponsible to an extent that a special verdict is justified, but also if X was suffering was suffering from diminished responsibility. See Chitiyo1987 (1) ZLR 235 (S), Taanorwa 1987 (1) ZLR 62 (S), Chin'ono 1990 (1) ZLR 244 (H) and Mukombe 1991 (1) ZLR 138 (S). Where the killing is apparently motiveless, this should alert the defence lawyer to the possibility that X may have been suffering from some form of mental instability when he committed the murder. Where the conduct of X was strange, the defence counsel would be well-advised to interview members of X's family, his friends, co-workers and former employers to ascertain whether he had any history of strange behaviour.

The case of Stephen HH-40-92 is of considerable importance in relation to the issue of mental disturbance and extenuation in murder cases. In this case a man had killed one of his sons and had attempted to kill his second son and his wife. He had committed these acts whilst in a state of hysterical dissociation with only a very minimal degree of self-control. The court found that a person who is capable of some degree of self-control becomes capable of forming the mens rea for murder. Although he was suffering from a mental disorder or disability at the time he committed the crimes, he was still responsible at law for his actions and therefore a special verdict in terms of s 28 of the Mental Health Act, was not returnable. Instead, the court found that he was guilty of murder, but with extenuating circumstances because of diminished responsibility. In the particular circumstances of this case the guilty verdict amounted really to a technicality. No moral blameworthiness attached to X. The court sentenced X to imprisonment until the court rose.

In Dube 1997 (1) ZLR 229 (H) X, aide to President Banana shot and killed a police officer, D, at a sports stadium D had remonstrated with X for urinating in public place. X said he was very intoxicated and had been provoked as D had referred to him as "Banana's wife". X said Banana had committed homosexual acts on him against his will. X said he had violently reacted to D's comment. According to the psychiatric evidence X was suffering from post-traumatic stress disorder as result of these acts. However, there was a conflict between the evidence of two psychiatrists. One said the combination of this disorder and drunkenness amounted to mental disorder such that X was not responsible according to law for his actions. The other psychiatrist said that the disorder would not have prevented X from appreciating what doing or the consequences of actions. The court decided that although post-traumatic stress disorder could fall within wide definition of mental disorder in the Mental Health Act, on facts found proved, it was not a disorder that prevented X from being aware of what he was doing or of consequences of his actions. The combination of alcohol, drugs and stress disorder would, however, have meant that X was suffering from diminished responsibility.

Defence counsel should explore a second or third line of defence in apparently motiveless murders, such as intoxication, provocation or insanity. Although the State is not obliged to establish a motive for the murder, the absence of a motive "should always set alarm signals ringing in the mind of defence counsel": McNally JA 1988 Vol 1 No 2 Legal Forum 6. In determining the issue of extenuating circumstances, everything which influenced the mind or emotions of the murderer must be taken into account: Fundakubi 1948 (3) SA 810 (A).

Youthfulness

Youthfulness on its own or together with other factors can constitute an extenuating circumstance. Youthfulness connotes immaturity, lack of experience of life, thoughtlessness and a mental condition of susceptibility to external influences, especially those emanating from adult persons: Chininga S-79-02.

Constructive intent

In Siluli S-146-04 the court ruled that where, on a charge or murder, only a constructive intent to kill is proved, the court need not necessarily find that this is a circumstance of extenuation, but the court should examine the other features of the case very carefully indeed before rejecting a plea that the offence was committed in extenuating circumstances. A constructive intent to kill is a factor which must be put in the credit side in the accused's favour in that weighing-up process.

Repentance and efforts to assist victim

Repentance and endeavours by the accused to assist his victim before the victim's death cannot, standing alone, amount to extenuating circumstances: Jaure 2001 (2) ZLR 393 (H)

The fact that the murder weapon was taken from the victim does not constitute a factor of extenuation see; Mubaiwa & Anor 1992 (2) ZLR 362 (S).

Proof of murder conviction

The fact that there is an ongoing murder trial must not be referred to when extenuation is being considered: Mubaiwa & Anor 1992 (2) ZLR 362 (S). Proof of a murder conviction should not be adduced if the court finds no extenuating circumstances: Mlambo 1992 (2) ZLR 156 (S). In the same light,


See Zimbabwe Criminal Defense Manual