HUNGWE
J: This application is made at the instance of the accused in terms
of s 198 (3) of the Criminal Procedure & Evidence Act, [Chapter
9:07].
That section provides
“If at the close of the case
for the prosecution the court considers that there is no evidence
that the accused committed the offence charged in the indictment,
summons or charge, or any other offence of which he might be
convicted thereon, it shall
return a verdict of
not guilty.”
It
is essential that I set out the bare facts which led to this
application so as to put the application into context.
The
accused is the mother to the two children who died in an inferno
which destroyed the house in which the two children were asleep. She
was charged with murder as defined in s 47 (1) of the Criminal Law
(Codification and Reform) Act,
[Cap
9:23].
The State alleged that
“on the 26th
day of May 2014 and at Tapera Village, Chief Makoni, Rusape, the
accused unlawfully and with intent to kill, burnt Bathsheba Berly
Mamhunze and Divine Rhythm Mamhunze by setting on fire the bedroom in
which both were sleeping and got burns all over their bodies thereby
causing injuries from which the said Bathsheba Berly Mamhunze and
Divine Rhythm Mamhunze died.”
It
is common cause that the accused is the mother to both deceased
children. On 26 May 2014 the bedroom in which she was sleeping with
the two children with her husband and the two children was gutted by
fire. The State claims that the accused had intentionally set the
bedroom on fire with intent to kill her children. She denies the
nefarious motive and maintains that the fire started accidentally and
gutted the bedroom where she and her family were. The matter
proceeded to trial on that basis. Evidence was led from not less than
eleven witnesses. The first witness was her husband's mother. Her
evidence was that the accused was the senior wife in her marriage to
Tapiwa Mamhunze, her son. The junior wife was Esina Kunaka. Earlier
that day, the accused had quarrelled with her husband over certain
issues which remained unclear. She had restrained and counselled them
in this misunderstanding. She later observed the accused sprinkle
petrol on Tapiwa, her son, who she then attempted to set on fire. Her
son had managed to douse out the fire without incident or injury to
himself. She and a neighbour, one Loveness, had counselled the young
couple and later retired to bed. It was only in the early hours of
the next morning that she woke up to the shouts for help from her son
Tapiwa who said his house was on fire. When she got to the scene her
son had managed to rescue Divine Rhythm. She accompanied the child
who had suffered serious burns to Rusape General Hospital.
The
junior wife, Esina Kunaka, confirmed the altercation between the
accused and their husband. She also confirmed that the accused had
sprinkled petrol over their husband and attempted to set him alight.
He did not suffer any injuries as he managed to put out the flames.
Later that night going into early hours of the next day she had been
woken up by their husband who shouted that the house was on fire. She
occupied a separate section of the house. She managed to escape with
her children. Accused's two children were severely burnt in the
fire.
The
father-in-law to the accused Elton Mamhunze gave evidence in court.
That evidence touched on the events of the day preceding the incident
in which his son's house got burnt. He had earlier that day
counselled the young couple against violence. They appeared to have
heeded his wise counsel as their father. He was awakened by his wife
who told him of the fire engulfing his son's house. He did not see
nor did he later get to know from other sources how the fire had
started. He was unable to say the accused had set the house alight.
The rest of the evidence was of a formal nature touching upon hoe the
hospital staff had treated the deceased and later complied post
mortem reports at different times as well as hoe the police had
conducted the investigations. It is critical to observe that the only
person who could have shed light in this matter, besides the accused,
was the accused's husband, Tapiwa. They were in the same room with
the children when the fire started. He would have had the first hand
information regarding this aspect of the case. Unfortunately the
State decided to exclude this crucial evidence and instead chose to
call a witness, Elton, who was not listed as part of the line-up of
the state witnesses. In the end there was no evidence linking the
accused with the death of the deceased. As she was entitled to, the
accused applied for the discharge of the case against her at the
close of the state case on the basis that no evidence was led that
she committed the offence charged or any other offence for that
matter.
The
courts in Zimbabwe have pronounced themselves in a long line of cases
including S
v Kachipare
1998 (2) ZLR 271 (S) as to the law in Zimbabwe on an application for
discharge at the close of the case for the state. The position at law
is sufficiently clear as to be called trite. It may be restated as
follows. Where the court considers that there is no evidence that
the accused committed the offence charged or any other offence of
which he or she might be convicted, the court has no discretion but
to acquit.
On
a charge of murder the possible alternative charges include culpable
homicide and assault.
The
test whether the court ought or must discharge the accused at the
close of the State case has been set out as follows;
The
court should discharge the accused at the close of the case for the
prosecution where:-
(a)
there is no evidence to prove an essential element of the offence;
(A-G
v Bvuma
& Anor
1987 (2) ZLR 96 @ 102);
(b)
there is no evidence on which a reasonable court acting carefully
might properly convict;
A-G
v
Mzizi
1991 (2) ZLR 321 @ 323;
(c)
the evidence adduced on behalf of the State is so manifestly
unreliable that no reasonable court could safely act on it.
A-G
v Tarwireyi
1997 (1) ZLR 575 @ 576.
In
all these instances the cardinal guide is that the State would have
failed to prove a prima
facie
case against the accused. A prima
facie
case is a case where one can say there has been shown, on the
evidence led, a probable cause to put the accused on his defence.
Generally, probable cause or a prima
facie
case is made where all the essential elements of the offence charged
or any other offence on which the accused may be convicted have been
proved on a balance of probability. At this stage the test is not
whether there is proof beyond reasonable doubt but whether on a
balance of probabilities it can be argued that the essential elements
constituting the offence charge or any other offence have been
proved.
On
a charge of murder, the State, at this stage ought to show a balance
that the following elements have been proved:
(a)
the accused burnt the deceased;
(b)
by setting the bedroom on fire;
(c)
with intent to kill;
(d)
that the accused acted unlawfully.
In
other words the evidence must be such that a reasonable court, acting
carefully, may convict the accused for the offence charged or any
other offence on which he can be convicted.
The
evidence led so far related to how the accused acted towards her
husband during the day. The accused had quarrelled with her husband.
She has secured petrol. She had later attempted to set him alight.
She had poured the petrol onto her husband and so on. The charges she
faces in this trial relate to her two children and not her husband.
The crime charged, murder, was allegedly committed by setting the
bedroom in which the two children were asleep alight. There is no
evidence to show how she did this. There is too, no evidence to
suggest that she did so intending that her two children only be
consumed by the raging inferno without risking her own life in the
process. There is no evidence to suggest that she lit the bedroom
from the outside. There is no evidence of any motive that she, as the
natural mother would have to achieve such a wicked outcome. Of course
the existence of a motive is not, on its own, sufficient evidence
linking a suspect to a crime but it does provide probative value, in
cases, to other pieces of circumstantial evidence that may exist in a
case. This evidence could have been procured from the only other
witness present in the bedroom who survived the fire, Tapiwa, her
husband. He was not called.
As
matters stand, an essential element of the crime, which is the act
constituting or linking the circumstances to the intent to kill, was
not proved. It is not clear on the evidence led so far, how she set
the bedroom alight, and least of all how she set alight or burnt her
children. It is mere speculation for this court to suppose that she
had sprinkled the entire bedroom with the petrol she had acquired
earlier in the day in an effort to kill her husband as testified to
by the mother-in-law; or the junior wife. These two could, not by any
stretch of imagination, be adjudged independent witnesses in the
circumstances of this case. Therefore, if one discounts the evidence
from the close family members, who themselves do not state that the
accused set the bedroom ablaze in a particular manner, or that she
had confided in one or both or more of the witnesses that she had
done so, it is unclear how the case for the State could ever reach
the threshold of proof beyond a reasonable doubt.
The
accused's defence is that this was a tragic and unforeseen accident
in which she too was a victim. What this defence does is to
challenge the State to prove that the burning of the children was
accompanied by a malicious mind on the part of the accused.
If,
as she says, this was an accident, then even accepting that the death
was a result of her own conduct which conduct is still unknown, there
can be no prima
facie
case for murder, culpable homicide or even assault. In order to
constitute a criminal act, there must be a guilty mind accompanying
an actus
reus
i.e. the circumstances constituting criminal conduct.
It
is trite that there can be no blame in criminal law without fault.
It is a principle of natural justice and our law that actus
facit renum nisis mens in rea
which means “an act does not make a person guilty unless their mind
is also guilty.”
In
the present case, up to the close of the State case, it is not
disclosed what the accused did to either set the children's bedroom
alight or to burn them. Without some form of proof of her conduct it
is inconceivable that the accused can be convicted on any other
offence which is a competent verdict on a charge of murder.
In
the result the accused must be found not guilty and acquitted.
National
Prosecuting Authority,
State's legal practitioners
Maunga,
Maanda & Associates,
accused's legal practitioners
