Criminal Trial
MAKONESE J: The deceased
Nestai Ncube was employed as a lecturer at the Midlands State
University at the time she met her death. She was 48 years old. She
had been married to the accused since 2001 and resided at their
matrimonial home at 33 Wentworth Road, Southdowns, Gweru.
The accused who is aged 63 is
facing a charge of murder, it being alleged that during the early
hours of the 27th
February 2016, accused armed himself with home-made mattock and
struck the deceased with it on the head three times. As a result, the
deceased sustained three deep wounds in the head, leading to her
death.
The accused pleads not guilty to
the charge and in his defence avers that he acted in self defence as
he was under imminent attack from the deceased.
The bulk of the evidence in this
matter is common cause or at least not in dispute. It shall not be
necessary to repeat the contents of the state outline which has been
tendered into the record of proceedings and now forms part of the
record as exhibit 1.
The defence outline was tendered
as exhibit 2.
In brief the accused's defence
was that prior to this fateful day the accused had established that
the deceased was engaged in an extra-marital affair with one Prosper
Maburo. The accused had confronted deceased's lover who admitted
the illicit relationship and promised to terminate the affair.
This did not happen.
In a desperate attempt to save
his marriage the accused had roped in the assistance of two pastors
from the Seventh Day Adventist Church, one Xmas Mutero and Artwell
Tapera to counsel the deceased and persuade her to end the
relationship.
On the night of the 26th
February 2016, the two pastors visited the deceased at her
matrimonial home and held lengthy discussions with the deceased. At
the end of these discussions the deceased said she needed more time
to consider the issue.
The accused avers that following
this discussion he retired to bed around 9pm. The deceased said she
was going to the kitchen to wash dishes.
The accused states that he did
not notice the time the deceased came to the bedroom. He states that
around 2am the following morning the deceased woke up and left the
bedroom going to the toilet. When she returned she was in possession
of a home-made mattock (exhibit 5) which she swung at him while he
lay in bed.
Accused managed to wrestle the
deceased and dispossessed her of the weapon.
Accused then struck the deceased
three times in the head as she tried to get up from the bed where she
had fallen. The deceased fell down and never got up again thereafter.
She had been fatally injured.
Accused locked the house and the
outer gate to the premises and drove off to Sanyathi where he later
handed himself to the police.
Accused avers that he had no
intention to kill the deceased but acted in self defence at the spur
of the moment and did not have time to rationalize things but had
taken immediate defensive measures.
The state tendered the accused's
confirmed warned and cautioned statement (exhibit 3) recorded at
Gweru on the 1st
day of March 2016. In this statement, the accused gave his response
to the allegations as follows:
“On
the night of Friday 26th
February 2016, Pastors Tapera and Mutero had held discussions with
Nestai Ncube on the marital problems between myself and Nestai Ncube
as I was emotionally stressed. These related to her affair with
Prosper Maburo which had been going on for quite some time resulting
in her not coming home sometimes and to my former wife Grace
Muchadenyika whom she thought I was having an affair with and she
indicated that she was bitter.
Nestai
Ncube needed time to consider the request that she lets go off the
bitterness (sic) and vengefulness.
Early
Saturday, around 0200 or 0300 hours, Nestai Ncube woke up to visit
the toilet and after quite a long time, she came back and as I looked
through the bedroom door I noticed that she was holding an object. On
entering the bedroom she proceeded to where I slept and swung the
object intending to strike me.
We
wrestled and I managed to get the weapon and struck her and she
groaned.
I
left home thereafter fearing for my life as my brothers-in-law were
known to be violent.
Later,
I phoned Xmas Mutero to go and check Nestai Ncube's condition and
possibly take her to hospital. I proceeded to Sanyathi to brief my
mother and relatives on the matter and I voluntarily handed myself
over to the police at Sanyathi Police Station.
It
was never my intention to cause the death of Nestai Ncube.”
After recording the accused's
response to the charge, the accused was asked further questions
relating to his defence and two of those questions were as follows:
“Q.
When you struck Nestai Ncube where was she?
A.
She
was on the bed after she had fallen on the bed when I was trying to
take the object from her.
(emphasis added)
Q.
How many times did you strike her and on which part of the body?
A.
Three times around the neck area.”
It is important to note that the
accused stuck to his defence throughout the trial and did not depart
from his defence outline in material respects when he gave viva
voce evidence.
The state tendered the post
mortem report as (exhibit 4).
The post mortem report was
prepared by Dr Ivian Betancourt following an examination on the
remains of the deceased at United Bulawayo Hospitals on the 29th
February 2016.
The pathologist concluded that
the cause of death was:
(a) Severe cerebral damage;
(b) Subdural haematoma, skull
bones fractures;
(c) Severe head trauma due to
unknown object;
On marks of violence, the report
indicates that following injuries:
(1) Sutured wound 10cm on the
middle frontal region;
(2) Sutured wound 12cm on the
right temporal and parietal region;
(3) Sutured wound 3cm on the back
of right ear;
(4) Abrasion (one circular
abrasions) on the left scapular region;
(5) Swollen both eyelids, marked
on the right eyelid;
The post mortem further reveals
the following injuries on the skull:
(1) Subgaleal haematoma on the
frontal and both parietal areas and occipital region;
(2) Skull bones fractures
(multiple) localized in frontal region (complete frontal region) and
another big stellate fracture with bone fragments localized in right
temporal and parietal region;
(3) Sortie of encephalic mass and
severe brain damage;
(4) Big right subdural haematoma
through the right skull fracture seen;
The state produced the murder
weapon, a home-made mattock as exhibit 5 and a visual observation of
the weapon reflects that it is a garden tool shaped like a pick axe,
with blunt edges on both sides. The mattock has a handle 89cm long.
Its blade is 23cm long and it weighs 2.6kg.
The state with the consent of the
defence counsel introduced the summary of the evidence of the
following state witnesses as it appears in the state outline by way
of formal admissions in terms of section 314 of the Criminal
Procedure and Evidence Act (Chapter 9:07), namely;
(a) Xmas Mutero;
(b) Nixion Mupasiri;
(c) Osbert Jere;
(d) Prisca Mbwende;
(e) Conrad Ngungu;
(f) Detective Sergeant Mushura;
(g) Detective Sergeant Sakala;
(h) Dr I. Betancourt;
The state opened its case by
leading oral testimony from its sole witness Constance Chirigo. This
witness testified that she is employed at Gweru Provincial Hospital
as a nurse. She has nine years nursing experience and she was on duty
on the 27th
February 2016 in the casualty ward when the deceased was brought to
the hospital in an ambulance. The witness pushed the patient on the
stretcher into the resuscitation room. The deceased was badly injured
and was not able to talk.
She observed two deep wounds, one
near the forehead and the other at the back of the head. The deceased
was bleeding profusely from these injuries. The doctor on duty was
called to attend to the patient. The wounds were sutured and she was
transferred to the female surgical ward for further treatment and
care.
The witness's evidence was not
challenged by defence counsel as it was essentially common cause.
The state closed its case at that
stage.
The accused opened the defence
case by giving viva
voce evidence under
oath.
To a large extent the accused
adhered to his defence outline and maintained that he acted in self
defence.
The accused narrated in detail
how he had tried to restrain the deceased from engaging in an
adulterous relationship with one Prosper Maburo. He testified that he
had confronted his wife's lover at his workplace and warned him not
to continue his relationship with the deceased. The deceased's
lover promised to discuss the matter with the deceased and thereafter
give him feedback.
The accused stated that he got
the impression that the affair had persisted as his wife continued to
come home late and in certain cases did not come back home at all.
This prompted the accused to
solicit the assistance of Xmas Mutero and Artwell Tapera, two pastors
from the SDA Church. The two arrived at accused's matrimonial home
on the 26th
February 2016 and held a lengthy discussion with the deceased.
Accused testified that at the end
of the meeting with the pastors, the deceased intimated that she
still required more time to consider the issue.
It would seem that the failure by
the deceased to undertake put an end to the illicit affair was not
taken well by the accused. It would also appear he was frustrated as
he went to bed early.
The deceased meanwhile went to
the kitchen to wash the dishes.
What transpired in the bedroom in
the early hours of the morning of the 27th
February 2016 is only known to the accused and the deceased, who is
no longer alive to testify. There is no independent evidence to
corroborate or rebut the accused's version of events.
The court shall to a large degree
assess the evidence placed before it and weigh the probabilities
before accepting or rejecting such evidence.
The court is mindful that the
accused's version can only be rejected if it is found to be false
and if it is not reasonably possibly true.
The accused's version is that
he went to bed alone leaving the deceased to do the dishes. The
accused stated that he believed that the deceased was only trying to
find an excuse to update her lover on the outcome of her discussion
with the pastors. The accused says he proceeded to sleep and did not
notice at what stage the deceased came to bed.
He said that in the early hours
of the fateful day the deceased had woken up ostensibly to visit the
toilet. He said she took an unusually long time before returning to
the bedroom. When she came back and while he was lying in his bed he
observed that the deceased was holding an object in her hand.
Accused remained still and when
the deceased was about a metre and half away he realised that she was
in fact in possession of a home-made mattock (exhibit 5).
The accused said deceased swung
the mattock towards him and aimed at his chest.
The accused blocked the blow and
there was a tussle for the weapon. Accused dispossessed the deceased
of the weapon, resulting in deceased falling on the bed on her
stomach.
The accused said he was seized
with fear and could not accurately remember what happened thereafter.
On how he struck the deceased,
the accused had this to say:
“As
the two of us wrestled I got hold of exhibit 5. I do not know what
happened thereafter. What
I still remember is that deceased was still trying to get up that is
when I struck her with exhibit 5.”
(emphasis added)
The accused then narrated that he
struck the deceased at least three times and when he realized that
the deceased was on the floor and injured he exited the bedroom in a
hurry, locked the house and the outside gate and drove off.
Accused said he knew the
deceased's brothers to be persons of violent disposition so he felt
unsafe and took a decision to drive to his home in Sanyathi. He did
not think it wise to report the matter at a police station in Gweru.
From the accused's own version
he struck the deceased on the head on more than one occasion as she
was trying to get up from the bed.
She was no longer in possession
of the mattock. He had managed to overpower the deceased and he was
in a stronger position.
On the accused's own version as
she lay on the bed after he had taken the murder weapon from her she
posed no real danger to him. The accused had evidently averted the
danger by taking the mattock.
At that stage the person who was
in imminent danger was the deceased.
The accused did not choose to
leave the bedroom when he had secured the weapon. He only thought of
striking the deceased.
The accused accepts that he
delivered at least three blows to the head in quick succession.
He testified that he had no time
to think or rationalize things and merely took defensive measures.
The accused refused to disclose the amount of force he used to
inflict the injuries but readily conceded that the extent of the
injuries reflected in the post mortem report is indicative of the
fact that excessive force was used.
Factual findings by the court
This court makes a specific
finding that from the accused's own admission he was under no
imminent attack when he struck the deceased.
Accused was content to state that
he was full of fear.
The accused failed to explain why
he struck the deceased repeatedly when he was aware that he had
already averted the danger.
Mr Shumba
appearing for the state fairly put the position when he indicated
that had it been shown that the accused introduced the mattock into
the bedroom, the matter would have taken an entirely different
complexion.
The court makes a finding that on
the facts, the accused used excessive force and attacked a
defenceless person indiscriminately.
The court rejects the accused's
explanation that when he saw the deceased approaching him with a
weapon he remained still in bed and did nothing.
The accused's version on this
aspect is not within ordinary human experience.
In the face of danger any normal
human being will seek to confront the source of danger or run away
from it.
It is clear that on this aspect
the accused was not telling the truth and one would wonder what he
was hiding.
Before concluding the assessment
of the accused's evidence the court observes that the demeanor of
the accused in the witness stand was poor.
The accused did not answer
questions put to him directly and sought to give lengthy
explanations. Accused's defence counsel was so exasperated by
accused's manner of answering questions and had to caution the
accused to answer the questions put to him.
One crucial observation is that
accused was free to give a detailed account of each and every event
up to the moment he went to bed on the 26th
February 2016. The accused seems to have suffered loss of memory from
the point he says he dispossessed the deceased of the murder weapon.
The accused was evidently
uncomfortable to confront the gory details of his attack upon the
deceased.
On the most critical aspects of
this matter the accused pretended not to remember much.
It is the court's view that the
accused was very mean with the truth on his account of what happened
in the bedroom. The accused, it would seem, only told the court what
he wanted to disclose.
Analysis of the law
In his book, The
Guide to Zimbabwean Criminal Law,
Professor G. Feltoe discusses the distinction between positive or
actual intent and constructive intent or legal intent. The author
characterises the distinction as follows:
Actual intention
(a) Desires death. Death is the
aim and object; or
(b) Death is not the aim and
object but in the process of engaging in some activity foresees death
as a substantially certain result and proceeds regardless as to
whether this consequence ensues.
Legal intention
Does not mean to bring about
death but foresees it as a possibility whilst engaged in some
activity regardless as to whether death ensues. The requirements are
thus:
(a) Subjective foresight;
(b) As to possibility not
probability;
(c) Recklessness;
These requirements are now fairly
established in our law.
For the court to return a verdict
of murder with actual intent the court must be satisfied beyond
reasonable doubt that:
(a) The accused's fixed and
settled intention was to bring about the death of his victim;
(b) While pursuing another
objective he foresees the death of his victim as a substantially
certain result and proceeds with his conduct recklessly.
See the case of Robert
Mugwanda v The State
SC19-02; The
State v Herold Moyo
HB19-17.
Self defence
In our law the law of private
defence that is self defence and defence of third persons and defence
of property provides that a person is entitled to take reasonable
steps to defend himself against an unlawful attack.
Under our law the defence has
been codified and section 253 of the Criminal Law (Codification and
Reform) Act (Chapter 9:23) sets out the requirements for this
defence:
(a) there must be an unlawful
attack;
(b) the attack must be on the
accused;
(c) the attack must have
commenced or imminent;
(d) the action taken must be
necessary to avert the attack;
(e) the means used to avert the
attack must be reasonable;
The court's approach to this
defence should be as objective as possible.
The court must take into account
the circumstances of the victim and all the emotional pressures which
the accused was subjected to. The court must assess the threat that
was directed at the accused and the possibility of a fatality arising
therefrom.
See the cases of The
State v Nkululeko Nleya
HB138-02 and Ntsoni
v Minister of Law and Order
1990 (1) SA 572.
On the facts of the instant case
the following facts have been established:
(a) The accused perceived the
imminent threat to be the mattock that was being wielded by the
deceased;
(b) The accused succeeded in
averting the danger by dispossessing the deceased of the weapon;
(c) When the accused struck the
deceased he had eliminated the danger and the deceased was lying on
the bed trying to get up;
(d) When the accused struck the
deceased he had various options and could have simply exited the
bedroom. He did not have to assault the deceased.
(e) The force use in striking the
deceased was disproportionate in all the circumstances of the case.
Mr Mandipa,
appearing for the accused fairly conceded in my view, that had
difficulty in finding the rationality of he means used by the accused
in averting the perceived danger.
He conceded that a perusal of the
findings in the post mortem report reveals that the degree and extent
of the injuries leads to only one conclusion, that the force used to
avert the danger was exceedingly disproportionate.
The accused acted recklessly and
proceeded with his conduct regardless of the consequences.
The accused's explanation for
striking the deceased is that he felt afraid and believed that she
might get up and wrestle for the weapon again.
This explanation is not
reasonable and does not accord with common sense.
In my view, the state has managed
to prove that the accused is guilty of murder with constructive
intent.
He did not intend, on the
evidence before us, to bring about the death of the deceased. There
is however proof beyond reasonable doubt that the accused
subjectively foresaw death as a substantial possibility when he
repeatedly struck the accused on the head with a dangerous weapon.
At the material time, the accused
had averted the danger. He failed to explain why it was necessary to
inflict the injuries on a person who was lying on a bed. He had
neutralized the danger.
We, accordingly find the accused
guilty of murder with constructive intent.
Sentence
This court takes into account the
mitigating features of this case as against the aggravating factors.
The accused is a mature man aged
64 years. He spent one month in prison before he was granted bail
pending trial. He is a first offender and has lived a blameless life
for the greater part of his life.
He has however been convicted of
a very serious offence.
His moral blameworthiness is
exceedingly high having regard to the following factors; he savagely
attacked the deceased who was lying on the bed and trying to get up;
he struck the deceased on the head using a dangerous weapon; he
struck the deceased repeatedly and aimed at the head; he used
excessive force as shown by the injuries reflected in the post mortem
report.
After the assault the deceased
fled the scene and failed to render any form of assistance to the
injured victim.
The force used by the accused was
grossly disproportionate to the perceived danger.
What further aggravates the
matter is that accused has shown no signs of remorse and has not
shown any regret for his conduct.
The court does take into account
the fact that prior to this offence deceased had failed to terminate
her extra marital affair with her lover. This fact however must be
taken together with the fact that accused himself was accused of
having an affair with his ex-wife.
The moral turpitude of both
parties was therefore on level terms.
These courts will not condone the
use of violence as a means of resolving matrimonial disputes. This
was a barbaric and despicable attack on a defenceless woman. The
accused struck 3 fatal blows and the deceased died a painful death.
This court must impose a sentence that is just and fair. The sentence
must reflect the seriousness of the offence.
Accused is sentenced to 20 years
imprisonment.
The National Prosecuting Authority,
State's legal
practitioners
Gundu & Dube, accused's
legal practitioners
