CHITAPI
J:
The
accused was arraigned before this court on a charge of murder as
defined in section 47(1)(a) of the Criminal Law (Codification and
Reform) Act [Chapter
9:23],
it being alleged against her that on 26 February 2015 at house number
18844 Unit L, Seke Chitungwiza, she, the accused acting with an
intention to kill, unlawfully caused the death of one, Petros Mutasa,
her husband thereat, by stabbing the said Petros Mutasa with knives
thereby inflicting certain injuries from which he died on the same
date.
When
the matter was called on 22 February, 2016, the State counsel applied
to have the matter stood down to 23 February 2016. He submitted two
reasons for seeking the postponement. The first reason was that he
needed to make arrangements for the court to sit at the Victim
Friendly Court at Harare Magistrates Court. The principal and only
eye witness to the stabbing of the deceased and indeed the commission
of the offence was the couple's only child, aged 8 years at the
time of the incident. Being a 9 year old juvenile as at the time of
the accused's trial the child could not testify in open court, the
practice now being that such witnesses are classified as vulnerable
and are afforded the convenience of giving evidence in a friendly
environment in which they testify away from the physical presence and
direct eye contact of the accused, members of the public, and the
court officials other than the trained court interpreter.
Before
this court can remove to the Victim Friendly Court, there would be
need for that court to be gazetted as a High Court sitting venue for
purposes of the case.
The
second reason advanced for seeking the postponement was that both
State and defence counsels required time to further reflect on the
matter in the light of the defence outline filed on behalf of the
accused. The defence counsel also required time to go through witness
statements provided to him by the State counsel shortly before trial
commenced. It was the request of both counsels that they be given an
opportunity to also try and explore ways of curtaining the trial by
attempting to agree on mattes which could be agreed upon.
As
the grounds for the postponement as advanced were meritorious and
agreed to by both counsels, the court granted the postponement and
the trial commencement was deferred to 23 February 2016.
Upon
the resumption of proceedings on 23 February,2016, the accused upon
the charge being put to her indicated that she admitted to the
charge.
Mr
Bakasa
did not confirm the accused's admission to the charge as being in
accordance with his instructions. He submitted that his instructions
were that the accused admitted to causing the death of the deceased
but without having the intention to bring about the deceased's
death. He submitted that his instruction was to tender a plea of
guilty to the crime of culpable homicide as defined in section 49 of
the Criminal Law (Codification and Reform) Act [Chapter
9:23].
In
the light of the uncertainty surrounding the recording of the plea,
the court directed that the two offences of murder as charged against
the accused and put to her to which she had admitted to and that of
culpable homicide be explained and contrasted for the benefit of the
accused to understand the distinction.
After
the accused had confirmed that she understood the elements of the two
offences and how they are distinguished, she then clarified that her
plea of guilty was to the offence of culpable homicide and not
murder.
Mr
Bakasa
then confirmed the guilty plea as according with his brief or
instructions by the accused. A plea of not guilty to the charge of
murder was then recorded.
Mr
Nyazamba
was asked whether the State was agreeing to the guilty plea to the
offence of culpable homicide as tendered by the accused and he
accepted the plea.
In
consequence of the State's acceptance to the tendered plea of
guilty to culpable homicide (a competent verdict on a charge of
murder), the court entered a guilty plea to culpable homicide.
Consequent
upon the acceptance of the guilty plea, Mr Nyazamaba
moved the court to disregard the summary of the State case and to
substitute it with an agreed Statement of Facts which he read into
the record with the consent of Mr Bakasa.
The
Statement of Agreed Facts was accordingly admitted as exhibit 1.
Mr
Bakasa
confirmed
to the court that the accused understood and accepted the agreed
facts as correct, that he had explained the essential elements of the
charge of culpable homicide to which the accused had pleaded guilty
and that the accused's plea was a genuine and informed admission of
the offence and essential elements.
Accordingly
and as a sequel to the confirmations by Mr Bakasa,
the court formally convicted the accused of contravening section 49
of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
as it was entitled to in terms of the proviso to section 271(2)(b) of
the Criminal Procedure and Evidence Act [Chapter 9.07].
The
court was satisfied that on the basis of agreed facts as aforesaid,
the accused was guilty of the offence of culpable homicide and noted
that the concession by Mr Nyazamba
to agree to the lesser charge of culpable homicide was properly
informed and given.
Having
convicted the accused of culpable homicide as aforesaid,Mr Nyazmba
submitted that the accused was a first offender.
Mr
Bakasa then addressed the court in mitigation and he tendered written
submissions which he spoke to by emphasizing points made therein. Mr
Nyazamba thereafter made his submissions in aggravation of sentence.
The
matter was postponed to 25 February 2016 to afford the court time to
consider the submissions and prepare its reasons for sentence.
The
following are the reasons for sentence;
In
considering and assessing the appropriate sentence the court takes
into account what has been submitted by Mr Bakasa
on the accused's behalf as well as the submissions made by Mr
Nyazamba
for
the State.
A
reading of the Statement of Agreed Facts leaves the court in no doubt
that the tragic death of the deceased arose from senseless
considerations and could have been avoided if the accused had not
allowed her emotions to override reason. The agreed facts without
regurgitating them can be summarized as follows:
1.
The accused (36 years old) and deceased (55 years) were wife and
husband and were at home on the fateful day together with their only
child, an 8 year old girl.
2.
The couple was in their bedroom when around 1900hrs the deceased
received a message on his mobile phone. The accused demanded to read
the message but the deceased refused to let her read the message nor
to divulge to her the contents of the message.
3.
It is this refusal by the deceased to divulge the message contents or
avail his phone to the accused which angered the deceased and
culminated in a heated verbal exchange between the two.
4.
The verbal exchange degenerated into a physical engagement with the
deceased assaulting the accused with fists and kicking her. The
assault was perpetrated upon the accused all over her body and was
applied upon her indiscriminately.
5.
The accused's reaction to the assault being perpetrated upon her
was to run into the kitchen from where she armed herself with three
kitchen knives. The kitchen knives all smeared with dried blood were
produced as exhibit 3(a);(3b) and 3(c). Of the 3 knives, one is a
bread knife, another one curved and the third one has a straight
blade. Although the knives were not measured in their dimensions,
this is not an omission of any great moment because what is not
disputable is that one or another or all the knives were used to
inflict wounds of such magnitude on the deceased as shall be
described later. What is however important to record is that the
wounds were of such severity that the deceased succumbed to them.
6.
The deceased was not deterred by the accused's arming herself with
the knives and persisted in the assault upon her persisted to which
she reacted by randomly attacking the deceased with the knives and
inflicting cuts and injuries on the deceased's body as detailed in
the postmortem report exhibit 2, produced by consent.
The
injuries inflicted upon the deceased also appear from the photographs
taken of the deceased's body. Nine photographs were produced in all
by consent. They show that the injuries are gruesome, that is to say
they are unpleasant and shocking to look at. There is also a lot of
blood on and upon the deceased's body and on the tiled floor where
the body of the deceased lay.
7.
The accused got the better of the deceased as the deceased succumbed
to the injuries inflicted upon him with the knives. Upon getting the
better of the deceased, the accused went out of the house and made a
report of what had happened to a neighbour, Kraisheilah Shasha who
mobilized other neighbors and proceeded to the accused and the
deceased's house aiming to assist but found the deceased already
dead.
Doctor
Mapunda subsequently conducted a post-mortem examination on 28
February 2015 and compiled his report as already alluded to. He
attributed the deceased's death to post hemorrhagic shock. The
following are some highlights from a reading of the post mortem
report.
(i)
Clothing: body remained in lower and upper attire which was blood
soaked. The court noted this from the pictures.
(ii)
Old injuries: the body did not have any.
(iii)
There was no evidence of resuscitation attempts seen upon an external
examination of the body.
This
would accord with the agreed facts which reveal that after the
deceased had been incapacitated or after the accused had gotten the
better of the deceased, she did not do anything further on the
deceased but went out of the house to summon a neighbour.
(iv)
The body of the deceased had lacerations, bruises, abrasions, stab
and cuts consistent with use of sharp force.
(v)
A head, face and neck examination did not reveal evidence of an
injury due to blunt trauma. However on the right side of the neck,
there was an obliquely running stab/cut wound of clean cut margins
and sharp angles at the corners measuring 3.5cm and gapping by 1.5cm
at the centre. The depth of the wound was severe enough to cut the
jugular vein.
(vi)
On the anterior torso just below the right nipple, there was a stab
wound measuring 2.0cm x 0,8cm. The wound was within the pectoral
muscles and not penetrative.
(vii)
The elbow region had a deep incisional wound 0.6cm x 1.5cm.
(viii)
Pelvic walls within the right trigonal area had a stab wound 10cm and
gapping by 0.4cm.
The
doctor further commented on what he called “pertinent post mortem
findings” as follows:
(a)
4 stab wounds on the body.
(b)
4 incisional wounds on the right side of the body.
(c)
Degree of force used – dependent on the characteristics of the
weapon used, nature of movements of the victim at time of injury:
mild, moderate to severe force used.
(d)
Nature of injuries – grievous to fatal.
(e)
Weapon of causation – a pointed, bladed, sharp edged longish
weapon.
(f)
Mechanism of death: loss of blood amounting to at least one third of
the blood (5 – 6 litres) - causes imminently circulatory failure
and precipitates death in minutes to seconds.
(g)
Proximate cause of death: hemorrhages and shock.
In
summary therefore, the deceased lost a lot of blood due to the stab
wounds and did not receive immediate and urgent medical attention
which would have been required to stop the bleeding. The deceased
lost 5 – 6 litres of blood and such amount of blood according to
the post-mortem report accelerates death which can take place within
minutes to seconds because the victim would not have enough blood to
circulate to vital organs of the body.
The
nature of the injuries show that they were inflicted indiscriminately
using mild to severe force. The injuries were multiple and as already
indicated gruesome. The manner in which they were inflicted appears
to be consistent with the accused not aiming for any particular part
of the body but randomly aimed anywhere on the deceased's person
without appreciating where the knife blows landed on his body.
As
has been ruled by the court, whilst death was not intended nor
foreseeable by the accused, she certainly acted with a high degree of
negligence in her conduct and failed to guard against the possibility
that her actions might result in death.
Stabbing
a person in the neck with such force as would inflict a wound
measuring 3.5cm x 1.5cm in depth, such depth being severe enough to
result in the severing of the jugular vein, shows a high degree of
negligence. The use of inherently dangerous weapons in the form of
knives to ward off the attack by the deceased was in itself
negligent. No evidence was adduced before the court that the assault
on the accused by the deceased could not have been avoided by the
accused resorting to other forms of defence than to consciously
proceed to the kitchen and to select knives as defensive weapons.
Whilst
accepting Mr Nyazamba
's
concession to the accused's plea to a lesser charge of culpable
homicide as already alluded to, the court accepts without reserve his
submission that the accused had ample room and opportunity to escape
from the assault by the deceased but chose to act unreasonably by
standing her ground and arming herself with lethal weapons which she
used indiscriminately.
The
facts of this matter are borderline between culpable homicide as
defined in section 49(b) and murder with constructive intend as
defined in section 47(1)(b) of the Criminal Law (Codification and
Reform) Act.
In
assessing the appropriate sentence, the court will therefore bear in
mind that it is dealing with a very bad case of culpable homicide.
Section
47(1)(b) defines murder as:
“A
person who causes the death of another person:
(a)
--------
(b)
realising that there is a real risk or possibility that his or her
conduct may cause death, and continues to engage in that conduct
despite the risk or possibility shall be guilty of murder.”
By
contrast, section 49(b) provides as follows:
“Any
person who causes the death of another person –
(a)---------
(b)
realising that death may result from his or her conduct and
negligently failing to guard against that possibility shall be guilty
of culpable homicide and liable to imprisonment for life or any
shorter period or a fine up to or exceeding level fourteen or both.”
The
distinction between the two is narrow in that with respect to a
contravention of section 47(1)(b) the test is subjective. The accused
must have realized that his/her actions may cause death but despite
the realization continued to engage in his/her unlawful; conduct
which results in death. With respect to section 49(b) the accused
must be shown/proved to have realized that his/her actions may result
in death but failed to ensure or guard against the possibility of
death. The test is objective in that the court enquires as to what a
reasonable person would have done in the circumstances.
In
casu,
the accused armed herself with lethal weapons (knives) and in using
them to defend herself against the assault perpetrated on her by the
accused, just randomly stabbed the deceased without caring or
guarding against the possibility that her actions would result in
serious injury or death.
The
court took note of the fact that the offence arose from a domestic
dispute.
The
deceased refused to let the accused read a text message which the
deceased had received on his phone. The accused got angry over the
deceased's refusal to divulge the message.
In
the court's view the accused's anger was not justified. Whatever
message which the deceased received was not intended for the accused
otherwise the deceased would have conveyed the message to her. The
accused simply could not respect the decease's right to privacy.
The court was not told as to why the accused demanded to read the
message.
Section
57(d) of the Constitution provides that every person has the right to
privacy of their communications. There is no law which provides that
a husband or wife has a right to infringe on the privacy of the
other's communications.
The
accused's insistence that the deceased should divulge a
communication made to him on his phone was in itself an infringement
upon the right of the deceased to privacy of communication. The
deceased was lawfully entitled to refuse to divulge the message he
had received on his phone to the accused albeit the accused being his
wife. In a way by insisting on the deceased that he divulges the
message, the accused was the cause or torched the altercation which
ended up with disastrous consequences.
It
is the court's view that society should learn to respect privacy of
communications. Many a time, the cellphone has been cause of
matrimonial quarrels and domestic disputes because couples do not
respect each other rights to communications made or received. A
cellphone is materially a gadget which is intended to ease
communications between persons. Almost every human being desires to
own a cellphone in order to be able to communicate with others easily
and with speed. There are various other uses to which a cellphone can
be applied and the court will not debate them. A lot of cases come
before the courts in which a spouse will have invaded the private
communications of another by going through messages and other
communications on the other spouse's phone. This practice should be
deprecated. It amounts to investigating or eavesdropping on one
another.
Usually
spouses who do this will be aiming to find evidence of wrongful
conduct by the other. Eavesdropping on another's cellphone is
evidence of lack of trust in that other person. Courts are flooded
with cases where couples or spouses seek to prove wrongful conduct by
the other using evidence in the form of messages retrieved from
another spouse's phone. Such evidence unless obtained with the
consent of the owner of the phone would have been illegally obtained
in contravention of the rights of every person to the privacy of
communication as guaranteed by section 57 of the Constitution and
evidential rules relating to admissibility of illegally obtained
evidence should be applied.
Whilst
the consequences of such invasion of privacy are varied, they may end
up as in this case in parties or spouses engaging in physical
confrontation. Physical confrontation between persons is inherently
dangerous as it results in injury if not death. An untrustworthy or
promiscuous spouse will not be deterred from engaging in promiscuity
because of the other spouse has access to the promiscous's spouse's
cellphone. Cellphones do not create or promote bad behavior
per se.
It is the person with or without a cellphone who is
characteristically bad. People use the cellphone to further their
ends. It is people who abuse cellphones. The court whilst accepting
that the argument between the accused and deceased arose from a
misunderstanding involving a cellphone, will not blame the cellphone
in this case but the accused.
The
court will take into account that it is within human nature that
people encounter situations which anger or provoke them. It is
however important that people learn to control their emotions. In
this case the accused was angered by the refusal of the deceased to
divulge a message which deceased received on his phone. This is not
the kind of conduct which should raise emotions to a point that a
person as did the deceased should get angry. The court will
nonetheless accept that just like every human being has his/her
weaknesses, the accused became emotive over the deceased's refusal
to divulge to her the message which he received on his phone.
The
deceased with respect to the physical engagement of the parties was
the aggressor. He used fists and also kicked the accused all over her
body indiscriminately. Both the deceased and the accused did not keep
their emotions under check.
Whilst
people as a fact will threaten each other and fight, the reaction of
the party on the receiving end, and the court says so without
adopting an armchair approach, must bear some relationship to the
wrong perpetrated upon such party. The conduct of the accused in
arming herself with dangerous weapons and using them indiscriminately
was not commensurate with the violence which she was subjected to by
the deceased. The reaction was not measured. The accused clearly
snapped and lost self-control. The courts cannot condone this.
Sentencing
is a delicate exercise. For the criminal justice system to retain its
respect and perform its function, courts must operate on sound
principles and avoid being swayed by personal feelings.
The
starting point is to bear in mind that every person has the right to
life as guaranteed by section 48(1) of the Constitution. This court
has a duty to protect the said right. The sanctity of human life
should be respected by all and sundry. Therefore a person who
unlawfully takes away another's life deserves to be adequately
punished.
Holmes
J.A in S
v
Rabie
1975 (4) SA 855 @ 862 C stated:
“Punishment
should fit the criminal as well as the crime, be fair to society and
be blended with a measure of mercy according to the circumstances of
the case…..”
This
principle is of universal application in a democracy where the rule
of law is used as a cornerstone of good governance.
The
public interest moreso in cases of a serious nature is properly
served by courts passing deterred sentences. The public must have
some degree of satisfaction that offenders of serious crimes are
adequately punished. Adequate punishment should not be of such
severity as to be out of proportion to the offence nor should it be
manifestly excessive. The court should act firmly, humanely,
compassionately and bear in mind the human weaknesses and pressures
of society which lead people to commit crime.
The
court will also be guided by the words of Addleson J in S
v
Harrison
1970 SA 684 A at 686 where he stated;
“Justice
must be done, but mercy not a sledgehammer is its concomitant.”
The
public, on the other hand, should not be left with a feeling that the
offender has been harshly treated.
The
seriousness with which the Zimbabwean society views the crime of
culpable homicide is to be understood with reference to the penalty
section which gives the court a discretion to sentence an offender to
a punishment ranging from a fine to life imprisonment or to both a
term of imprisonment and a fine.
The
court takes into account that the accused is a female first offender
who pleaded guilty.
Both
the State and defence counsels have referred the court to decided
cases based in domestic violence in support of their submissions in
mitigation and aggravation. The cases have been considered but are
distinguishable as the accused therein were not females and the
deceased was not the aggressor with respect to the physical
confrontations.
The
accused pleaded guilty showing contrition. She also demonstrated her
remorse not only by word of mouth but was witnessed by the court to
be sobbing silently throughout the addresses by counsel. The court
was satisfied that the accused genuinely regretted her
transgressions.
Mr
Bakasa
submitted that committing the accused to prison would cause mental
trauma upon the minor child of the deceased and the accused.
The
court noted that this was inevitable.
The
child was traumatized by the events of the day as she witnessed the
accused stabbing the deceased and the deceased attacking the accused.
Whilst
the court sympathizes with the child's predicament, it is hoped
that on the other hand she will accept that crime does not pay and
will herself appreciate that the law punishes crime.
The
submission by Mr Bakasa
that
imposing a custodial sentence upon the accused who is HIV positive
will result in her CD4 receding because of harsh conditions obtaining
in prison was adequately addressed by Mr Nyazamba
when he submitted that prisoners receive medical care in prison and
that being HIV positive was a condition and could be controlled.
Indeed
being HIV positive is not a death sentence because inroads have been
made to control the condition, thank you to medical efforts. Even if
the court's approach to the issue of the accused's HIV status is
wrong, section 76(2) of the Constitution obliges the State to allow
and afford every person living with a chronic illness access to basic
healthcare for such illness. Imprisonment does not extinguish or
diminish such right.
Mr
Bakasa
also
argued forcefully that the court should consider that this matter was
a domestic dispute where emotions and tempers are usually inflamed.
He quoted the cases of S
v Mkize
1979 (1) SA 461; S
v
Meyer
1981 (3) SA 11 and S
v
Boars
HH17/88.
The
general principle enunciated in the cases is noted. However, in those
cases, these was evidence that the accused persons were under
emotional stress or depression. In the present case no evidence was
laid before the court to prove that the accused acted under emotional
stress. Whilst it was submitted that the accused believed that it was
the deceased who had infected her with HIV, there was no evidence
laid before the court to show that the issue of the accused's
status was at the centre of the conflict. What was at the centre of
the conflict was the accused's unmitigated jealous in wanting to
know the identity of and/or content of a message sent on the
deceased's phone.
Even
accepting that this matter be classified as a domestic violence case,
the accused was the author of the altercation. She had no reason to
insist upon seeing or knowing a message not intended for her. The
courts have lamented the upsurge in cases of domestic violence and
the court must play its part by adding its voice in disapproving of
domestic violence by imposing exemplary sentences which hopefully
will not only punish the offender but deter like minded would be
offenders.
The
court has considered the cases of S
v
Sibanda
HB91/12; S
v
Mambodo
HH89/12; S
v Lovemore
Zuhu
HB88/12 cited by Mr Nyazamba
and noted that they are distinguishable on the facts.
The
submission by Mr Bakasa
that the court should consider imposing a sentence of community
service would trivialize a serious offence and such a sentence would
be disturbingly disproportionate to the offence committed by the
accused and an affront to society's sense of justice. It is the
kind of sentence which would lead to the public losing confidence in
the criminal justice system.
An
appropriate sentence in this case is one that should not create an
impression in the minds of good thinking members of the society that
courts condone such conduct as was exhibited by the accused.
Taking
into account all the objective circumstances surrounding the
commission of the offence, the subjective and personal circumstances
of the accused person including the fact that the deceased's death
will torment her for the rest of her life and bearing in mind the
principles of sentencing in general and in particular in cases of
this nature as well as judiciously exercising the court's
discretion with regards to sentencing, it is inevitable that the
accused deserves to be sentenced to a custodial sentence.
Part
of the sentence will be suspended on condition of good behavior and
also as a salutary gesture to temper justice with mercy and ensure
that for a long period even after serving the prison term the accused
will keep her emotions in check. The court in suspending a position
of the sentence has resolved to do so mindful of the sentiments of
the courts that where an accused is to undergo a very lengthy
sentence nothing is to be gained by suspending a portion thereof; see
S
v Kanhukamwe
1987 (1) ZLR 158; Attorney
General v
Paweni
Trading Corp (Pvt) Ltd
1990 (1) ZLR 24; S
v
Talent Makonora & Anor
HH42/11.
The
court seeks to distinguish this case from the cited cases on the
facts and the length of the sentence which it will impose vis-a-
vis
what was imposed in the cited cases.
The
accused is sentenced as follows:
10
years imprisonment of which 2 years imprisonment shall be suspended
for 5 years on condition that the accused shall not within that
period commit any offence involving the loss of human life as defined
in sections 47 or 49 of the Criminal Law (Codification and Reform)
Act.
The
State counsel has applied that the court makes an order in terms of
section 61(1)(a) of the Criminal Procedure Act [Chapter 9.07] that
the exhibits produced in the trial, namely, the 3 knives exhibits
3(a) and (3b) and (3c) be returned to the accused.
The
defence counsel consented to the application.
When
the court pointed out whether the knives should not be forfeited to
the State in terms of section 62 of the same Act, the prosecutor
sought to give the court a lecture on the challenges faced by the
State in holding exhibits with the exhibit rooms being full.
I
therefore accede to the request and order that the knives be returned
to the accused.
National
Prosecuting Authority,
state's legal practitioners
Nyamayaro,Makanza
& Bakasa,
accused's legal practitioners
