Criminal
Trial
MWAYERA
J:
In
this case the accused pleaded not guilty to a charge of murder as
defined in section 47(1)(a) or (b) of the Criminal Law (Codification
and Reform) Act [Chapter
9:23]
in which it is alleged that on 11 September 2018 at Gumtree Shop,
Chitakatira Village, Chief Zimunya, Mutare the accused with intent to
kill, stabbed the deceased with a knife once on the right side of the
neck thereby inflicting injuries from which deceased bled profusely
and succumbed to death due to massive haemorrhage.
The
post mortem report prepared by Dr Forgiveness Chitungo concluded the
cause of death and it was tendered as exh 4 by consent. The doctor
concluded that the cause of death was exsanguination secondary to
haemorrhage.
The
accused in his defence does not dispute stabbing the deceased but
denied stabbing the deceased with an intention to kill.
He
raised a defence of self-defence and he explained that he feigned
stabbing the deceased at the time he was under attack from the
deceased and company.
The
factual allegations in this case are largely common cause. The only
issue that falls for determination is whether or not when the accused
stabbed the deceased he was acting in self-defence such as to negate
the requisite mens
rea
to commit the crime of murder.
The
state adduced evidence from a total of 12 witnesses. Only four
witnesses Dr Forgiveness Chitungo, Baison Nedyere and Letwin Mavoyo
and Shadrek Munapo gave viva voce evidence.
The
rest of the witnesses evidence was formally admitted as it was on
common cause aspects. The undisputed facts are as follows:
1.
On 11 September 2018 the accused proceeded to Gumtree Shopping Centre
in possession of a knife carried in his pocket.
2.
The accused met with the deceased and others at the shopping centre.
3.
Accused and deceased had issues of stalking the same girlfriend one
Miriam Chabikwa.
4.
The deceased had issues with accused after “Whatsapp message
bragging about how accused snatched the girlfriend”.
5.
It was clarified accused had not sent any whatsapp message as clearly
revealed he had not been on whatsapp line or connection for over 2
weeks back.
6.
The accused challenged the deceased by getting in conduct with the
chest and the deceased slapped the accused and the latter retaliated.
7.
A scuffle ensued between accused and deceased who had pushed each
other to a dark place.
8.
The deceased was stabbed on the neck and the carotid artery was
severed.
9.
The accused fled from the scene.
10.
The deceased profusely bled and was pronounced dead upon arrival at
Mutare Provincial Hospital where he had been referred by the sister
in charge Chitakatira Clinic one Letwin Mavoyo.
I
must point out that Dr Forgiveness Chitungo gave very clear evidence
on the examination and preparation of post-mortem report of the
remains of the deceased.
He
observed a 5cm laceration on the right side neck of the deceased. He
further observed that the carotid artery was severed and came up to
the conclusion that death was as a result of exsanguination secondary
to massive haemorrhage.
The
doctor made it clear that the process of stopping blood oozing from a
severed carotid artery was complex and would require use of special
tools to plug the artery and this was not available at clinics like
Chitakatira.
The
doctor was unnecessarily subjected to what this court may term
harassment on his experience and qualifications.
He
never sought to portray himself as a specialist pathologist but was
taken to task.
His
report was clear on history of the body he observed and the
observations he made.
The
deceased was stabbed and he bled to death or that he lost blood to
levels incapable of sustaining life for himself.
Despite
the unnecessary bruising and barraging cross examination the witness
maintained his professional stance as he explained his observations
as recorded in the post mortem report exh 4.
Given
the accused's defence it was not in dispute that the deceased died
following the stab wound.
Letwin
Mavayo's evidence was also very straight forward.
She
is a nursing sister at Chitakatira Clinic. She only covered the wound
with a bandage. According to her at the time she attended the
deceased blood was no longer oozing out but deceased's clothes were
soaked in blood. Even at the place where he was seated after being
dropped off by a vehicle there was a pool of blood.
The
witness deduced that the deceased required hospital attention and
thus referred the patient to Mutare Provincial Hospital.
The
witness gave her evidence well. She took a barrage of unnecessary
criticism from the defence counsel as regards how she carried out her
duty. The defence queried why she was not in the clinic after hours.
The witness was on call and was within the hospital campus and as is
expected upon receiving an emergency akin to “urgent matter” at
court she immediately attended.
Blood
had been gushing from the scene of the stabbing at the shopping
centre, a distance estimated by witnesses to be about 5km and the
flow had subsided at time of reaching the hospital.
This
decrease in blood flow naturally as elucidated by Dr Chitungo is not
because of treatment but that the blood contained in a human being is
not infinite but an average quantity of about 5 litres.
The
witness attended and referred the patient for specialised care.
There
was no failure to timeously and professionally attend to the patient
and administer treatment as suggested by the defence.
In
so far as carrying out the duty of responding to call and attending
to a patient the witness cannot be criticised. Her evidence was
straightforward.
Byson
Nendere also gave oral evidence.
He
narrated how on the day in question the accused arrived at the shops.
According to the witness there was a misunderstanding over a whatsapp
message. The issue involved a girlfriend common to accused and
deceased. The witness was in the company of deceased one James and
David when checks were made. It was confirmed the accused had not
sent the alleged whatsapp message as he was not online. It was then
that accused challenged deceased.
The
latter then slapped accused and the accused retaliated.
The
two grappled with each other in a dark place and then the deceased
cried out he had been stabbed and injured. He fell to the ground.
The
witness was not taken to task on what role he played if any during
the scuffle.
It
appears that he was at the scene and was assumed to have
participated.
The
witness although he pointed out that the accused challenged all the
people, saying there is nothing you can do to me, it was clear a
scuffle ensued between the accused and deceased.
David
Munapo a cousin brother to the accused confirmed the sequence of
events at the shopping centre as recounted by Byson.
After
the check on whatsapp his brother the accused challenged all people
including deceased, saying they could do nothing to him. Accused
actually physically pocked the deceased's chest following which he
was slapped and a scuffle ensued.
The
witness pointed out that the two pushed each other and he latter
heard deceased cry out as he had been stabbed.
The
witness was just observing as he was taken aback by accused's
courage and challenge to the deceased who was much older than him. He
wondered what it is the accused was riding on to have such courage.
The
minor differences in the witness testimony and that of Byson is
immaterial.
The
incident occurred in the evening at the shopping centre and it was
for a short while. The witnesses do not have to give evidence which
is word for word with each other for them to be held credible.
On
material aspects the witnesses corroborate the state case.
The
scuffle was between accused and deceased even though accused
challenged the witnesses and deceased especially after verification
that no whatsapp message had been sent. The issue was clearly between
accused and the deceased as the accused is said to have snatched away
the deceased's girlfriend, Miriam Chabikwa.
The
minor discrepancies on distance during observation of the scuffle one
saying 3 metres and another saying 6–7 metres and difference on
when instruction to phone the police after being stabbed was given
are immaterial as they do not go to the root of the matter neither do
they change the complexion of the matter.
The
evidence of the witnesses on what transpired is clear and both
witnesses gave evidence well and in a truthful manner.
In
the case of S
v Lawrence and Ors
1989
(2) ZLR 29 (S) it was held:
“….
discrepancies in a case must be of such magnitude and value that they
go to the root of that matter to such an extent that their presence
would no doubt give a different complexion of the matter altogether.”
In
casu
the variations on witnesses version about distance from the shop
veranda to the secluded place are minor and do not change the common
cause evidence that a misunderstanding over a whatsapp message about
a common girlfriend, Miriam degenerated into a challenge between the
accused and the deceased.
During
the scuffle the two moved away by pushing each other to
a dark place; following which the deceased sustained a stab wound.
The
witnesses Byson Nendere and David Munapo's evidence remained intact
and they cannot be said to have been lying on common cause aspects.
The
last witness who gave oral evidence is Shadreck Munapo, the father of
the accused.
The
witness as correctly observed by defence counsel did not witness the
fraca at the Gumtree Shopping Centre neither did he witness the
stabbing of the deceased.
His
evidence was strictly “hearsay”.
As
if that was not enough the witness's evidence that prior to this
day the accused had sought to stab him and that on that date accused
threatened him is inadmissible as it is similar fact evidence.
In
any event the witness oscillated from saying he was threatened on
that day to saying it was on another day.
However,
such evidence still has no relevance to the present case.
The
witness had issues with the accused and accused's mother, his wife
as he took offence with why the accused was legally represented.
When
viewed in conjunction with accused's evidence there was no good or
cordial relationship between the accused and the witness as clearly
accused was hostile to the fact that the father was living with
another woman not his mother. The accused referred to that woman as a
prostitute.
There
was clearly tension between accused and the witness.
The
witness's evidence in our view was to a large extent inadmissible,
prejudicial and irrelevant to the matter beforehand.
It
is accordingly expunged from the record or disregarded to that
extent.
The
accused maintained he took out the knife and feigned to stab the
deceased in a bid to wade off an attack on himself by the deceased
and his companions who included Byson Nedyere and David Munapo.
In
his evidence however the accused did not elaborate how he was
attacked.
Both
evidence in chief and even during cross examination of witnesses the
detail of how he was attacked is missing.
Only
in closing submissions is there emphasis that he was held and
assaulted all over the body by more than three people and that is
when he produced the knife to scare off his assailants.
Even
in his confirmed warned and cautioned statement exh 1 the accused's
version is clear that he and the deceased Blessing Mhondera were
fighting for a girlfriend Miriam when he stabbed the deceased.
Failure
to give such detail in the confirmed warned and cautioned statement
and failure to give flesh and detail on the attack which he had to
defend himself and only emphasising the defence in the defence
outline and closing submissions taint the accused's version as an
afterthought.
Even
during cross examination by the State counsel the accused appeared to
be taking a gamble on the suggested defence of self-defence as he was
not firm on the defence.
The
defence of self-defence as provided for in section 253 of the
Criminal
Law (Codification and Reform) Act [Chapter
9:23]
clearly outlines requirements which have to be fulfilled in order for
one to succeed.
An
accused relying on the defence must prove that when he or she did or
omitted to do the thing:
(i)
the unlawful attack, had commenced or was imminent;
(ii)
his or her conduct was necessary to avert the unlawful attack or that
he or she would not escape from or avert the attack;
(iii)
the means used were reasonable in all circumstances; and
(iv)
that any harm or injury caused by his or her conduct was caused to
the attacker.
See
S
v Sibanda
HB139/18; S
v Manzanza
HMA2/16; and S
v Tafirei Runesu
HMA37/17.
In
Tafirei Runesu case, MAFUSIRE J in discussing the law on self-defence
pointed out that:
“A
person who is a victim of an unlawful attack is entitled to resort to
force to repel such an attack. Any harm or damage inflicted on the
aggressor in the course of such an attack or when the attack is
imminent is lawful.”
See
also S
v Ncube
SC58/17.
Central
to this defence of self-defence is whether the harm caused to the
attacker was reasonably necessary to avert the unlawful attack and
that the means used were reasonable in the circumstances.
In
casu,
the accused who challenged the deceased was slapped by the deceased.
He
fought back and the two engaged in a fight. There is no evidence that
deceased was armed, there was pushing and shoving by the two in an
open space when the accused took out his knife.
His
story or version that he feigned to stab given the nature of injuries
sustained and the body part to which the blow was aimed is not only
unbelievable but false.
If
it was mere producing of a knife then the question is how then was
the deceased stabbed with significant force.
The
accused had consciously left his home armed with a knife which
according to him would have become handy in case he met some muggers.
It is the same knife that he resorted to use when a fight erupted
between him and the deceased.
The
question is whether the accused acted unlawfully and that he realised
or ought reasonably to have realised that he was exceeding the bounds
of self-defence and foresaw or ought to reasonably have foreseen the
possibility of the resultant death.
If
the answer is in the affirmative basing on evidence adduced by the
State proving the case beyond reasonable doubt then the accused is
liable for the offence.
In
this case the evidence of state witnesses was well presented and the
witnesses who were at the scene impressed us as, truthful and
reliable witnesses. They maintained their version which to a great
extent tallied with accused's version that the fight between the
two was over a girl.
The
afterthought defence of self-defence cannot be sustained given all
the requirements cannot be met.
The
accused certainly exceeded the limits when he stabbed the unarmed
deceased he was fighting within an open space.
Even
if it were to be accepted that deceased had companions in attendance
fear of being attacked by unarmed man who have been shown not to be
actively involved in the fight would not warrant use of a knife.
The
action taken was disproportionate to the perceived danger sought to
be averted.
The
crime of murder faced by the accused consists of unlawful and
intentional killing of another human being.
In
S
v Kurongera
HH267/17 HUNGWE J opinioned that:
“Where
there is no expression of such intent the law can infer such an
intention from the accused's conduct and circumstances surrounding
the commission of the offence and conclude that such an intent
existed in accused's mind.”
In
this case, accused cannot be said to have set out with an aim to kill
and proceeded to achieve his goal but he definitely went out armed
with a knife ready to use if attacked.
When
involved in a fight which he started by poking deceased he
consciously took the knife and stabbed the deceased in the neck
severing the carotid artery.
Such
conduct of using a lethal weapon on another's delicate part of the
body gives the impression the accused had the requisite legal
intention.
Accused
is legally liable for the death of deceased and cannot escape
conviction for he engaged in conduct of stabbing the deceased in
circumstances where there was realisation that there was real risk or
possibility that the conduct might cause death.
He
is accordingly found guilty of murder as defined in section 47(1)(b)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
Sentence
In
assessing sentence we have taken into account all mitigatory factors
and aggravatory factors submitted by the defence and state counsels.
The
accused is a youthful first offender who committed the offence at the
age of 19.
We
have considered that the accused was affected by growing up in a
broken family where sins of the father and mother were visited on
him. The accused clearly lacked parental guidance as the father was
not staying with him but staying at another home with another woman.
The mother was away at her work place.
We
have also considered the background of the accused and the beliefs in
witchcraft as reducing the moral blameworthiness moreso upon
considering the attitude of the accused's father.
He
took issue with the accused being legally represented and immediately
after testifying largely in a malicious way sought to be excused to
attend to his own business.
Such
parenting when given the age of the accused clearly displays that the
accused lacked parental guidance and love.
In
aggravation we have considered all submissions made by the state
counsel.
Precious
human life was needlessly lost over a petty issue. The accused indeed
carried on like a bully as he posed to show his fiscal process not
only in snatching the deceased's girlfriend but physically
assaulting and stabbing the deceased.
The
accused used a lethal weapon a knife on a delicate part of the body
and cost life of the complainant at a tender age.
That
life can never be replaced.
After
the commission of the offence the accused went into hiding and such
conduct is unacceptable.
It
is important in passing sentence for all the circumstances to be
considered and seek to match the offence to the offender while at the
same time tempering justice with mercy.
The
maturity of the accused is quite central in mitigation and ought to
be reflected by departure from lengthy imprisonment term.
However,
the youthfulness should not be over emphasised to the detriment of
the justice delivery system.
The
society has to get fair and just decisions so as to continue to have
confidence in the justice delivery system.
An
appropriate sentence which reflects that the courts frown at use of
violence on others especially intentionally occasioning death has to
be passed. A custodial term is called for.
10
years imprisonment.
Tanaya
Law Firm,
accused' legal practitioners
National
Prosecuting Authority,
State's legal practitioners
