MUSAKWA
J: The accused stands charged with contravening section 47 of the Criminal Law
(Codification and Reform) Act [Cap 9:23].
The correct citation should be s 47 (1) (a) or (b). The offence arose in
Mashambanhaka village in Uzumba Maramba
Pfungwe.
The
brief facts as summarized in the outline of state case are that the deceased
was one of the accused's two wives in a polygamous setting. On 4th
July 2009 the deceased and the accused quarreled wherein the accused made
accusations of infidelity against the deceased. The accused lost his temper,
armed himself with an axe and tied up the deceased's hands and legs. He then
axed the deceased indiscriminately all over the body. The deceased died shortly
thereafter.
The
accused's defence was that on the day in question he had an altercation with
the deceased around 9 p.m concerning her infidelity. The deceased had
previously been found with cigarettes she could not satisfactorily account
for. The deceased then confessed that
their child was not sired by the accused. This incensed the accused as the
deceased further told him that she had falsely accused him of having bewitched
her. This accusation had previously led the accused to take the deceased for
treatment. The deceased in the process further told him that she had in fact
had a Depo-Provera injection and was in addition taking some family planning
tablets.
As
a result of this provocation the accused took a stick from behind the door with
which he assaulted the deceased. The deceased managed to fight back as she was
bigger than the accused. The deceased by then was armed with an axe which the
accused tried to wrest from her. As they grappled the accused turned the axe on
the deceased and he has no recollection of how she got injured. He only recalls
seeing the deceased sprawled on the floor in their bedroom. In a state of shock
the accused tied the deceased's limbs with a rope in a bid to straighten them
as they had been broken.
Afterwards
the accused reported the incident to his brother's wife. From there he followed
a footpath that led to his late parents' home and discarded the axe. He then
went to his in-laws' home where he attempted to commit suicide by ingesting
poison.
Maud
Date, the accused's first wife testified to hearing the altercation and later
hearing the deceased crying out that the accused was axing her. She then rushed
to alert a brother in-law as well as the village head. She did not find the
brother in-law but the headman told her they would attend. When she went back
she found the deceased seated on the floor with injuries to her hands and legs.
There was a lot of blood. A rope was close by on the floor. The deceased asked
for water which she availed. Having noted that there was a delay by the headman
she went back to seek further help.
Maud
Date was not a very forthcoming witness. She gave the impression that she did
not know what was going on between the accused and the deceased. The little she
did was to confirm that the two's relationship was rocky. For example she told
the court that she once heard from the accused that he had found the deceased
with some cigarettes. However, in her own view she considered the issue
trivial.
This
witness did not abide by her intended testimony as summarized in the outline of
state case. In the summary of her evidence it is stated that she heard the
accused and the deceased quarreling. She eavesdropped and heard the deceased
pleading with the accused not to axe her. She also pleaded with the accused not
to axe the deceased. She then heard sounds of an axe chopping several times and
the deceased crying for help.
She departed from this summary during her
evidence in-chief. She only stated that she heard the deceased crying that she
was being axed and she ran to inform a brother in-law as well as the village
head.
The
other witnesses to testify for the state were Zvinairo Mafusire who is the
accused's younger brother, assistant inspector Dvetero, the investigating
officer as well as Kerina Kanenungo who is an in-law of the accused. This last
witness was supposed to testify on the accused's attempt to commit suicide at
their home. However, it turned out that she did not witness the incident. Her
statement though purporting to give the impression that she was a direct
witness, turned out to be based on what she heard from her father. It is not
clear how such potentially grave mistakes are made in the recording of
statements from witnesses.
Owen
Mafusire the accused's thirteen year old son testified to hearing the deceased
crying out for help. He and other children had retired to bed in the kitchen
hut. He heard the deceased crying and saying sorry. He also heard sounds of
something being struck. According to him this happened thirteen times. He later
went to the deceased's bedroom hut where he found her seated on the floor with
her hands and legs bound with a rope. There was no light in the room. The deceased
requested her to untie her. He noted injuries to the leg, hands and on the side
of the head. He also provided the deceased with water to drink upon her
request. Later he returned to the kitchen hut.
The
accused's evidence was framed along the lines of the defence outline. However,
there were other material additions to his defence in the form of the
background to this tragedy. He stated that having entertained doubts about the
deceased's fidelity he had taken his case before the local court. As we
understood it, the accused wanted the public to hear about his accusations
against the deceased. He then divorced the deceased. The deceased took her
belongings and went to her parents' home. The accused was later summoned to the
local court where his in-laws reside and his father in-law leveled charges of
having cast a spell on the deceased. The divorce was reversed. He was ordered
to seek treatment for the deceased. This meant that the deceased would only be
accepted back by her parents after she had been healed. A chief's aide was to
accompany the accused and the deceased wherever they sought treatment. He
consulted a faith healer who diagnosed that the deceased had been bewitched by
those who were jealous of her marriage. Although the healer removed some
spells, the deceased was not healed.
He
also explained the incident of the cigarettes. He had found the deceased with
two packets of Madison cigarettes. Her explanation was that she had done some
work for the accused's nephew at his shop. When he failed to pay her she then
snatched the cigarettes from him. The accused was not satisfied with the
explanation. The issue was discussed and settled within the family.
Following
their divorce the deceased had been staying at his home for a month. They had
previously consulted a medical doctor who detected no abnormality with the
deceased but nonetheless prescribed some medication. On the fateful day the
accused had purchased the prescribed medicine in Murehwa. After supper he went
to the deceased's bedroom where he intended to give her the medication. That is
when the deceased told him she was not ill and was on a Depo-Provera injection.
She also told him that the issue of him having bewitched her was a ploy by her
and her parents to extract compensation from him. As he sought further
explanation from the deceased he addressed her by their daughter's name,
Varaidzo. That is when the deceased told him that the child was not his
daughter. She further told him that is why she preferred to call the daughter
Ethel.
At
this stage the accused says he lost his temper. He first took a one metre long
stick with which they used to secure the door from inside and started to beat
the deceased. He said he just beat the deceased randomly as he was angry. The
next thing was that he saw the deceased with an axe with which she attempted to
strike him. He then grabbed the axe and they struggled. The next thing he saw
the deceased had been injured. He does not recall how the deceased was injured
as he blacked out momentarily because of extreme anger.
After
noting the injuries he took a rope and tied the deceased's hands and wound the
rope around her body. He did this because the hands were badly injured as the
bones were sticking out. He then told the deceased that he was going to her
parents' home where he would kill himself. Having retrieved some rat poison
from his bedroom he first proceeded to his brother's home where he did not find
him. Under cross-examination he said the aim was to get a cart and oxen with
which to convey the deceased to hospital. However, this contradicts the earlier
decision to go and commit suicide at the deceased's parents' home. In any event
he managed to find transport and went to his in-laws' home in Chitsungo, some
fifty kilometers away where he attempted to take his life. It appears his
in-laws were not moved by his threats to commit suicide as they let him attempt
to take his life in their presence. He asked for water and ingested the poison
but he was later taken to hospital.
The
state submitted that self defence cannot be sustained as the deceased was not
armed when she was injured. Mr Nyasha initially
submitted that this was a premeditated act and thus the accused should be found
guilty of murder with actual intent. However Mr Nyasha, having at some stage submitted that the attack by the
accused was indiscriminate and reckless in the circumstances, relented and
urged the court to return a verdict of guilty of murder with constructive
intent. Regarding what is required to prove constructive intent Mr Nyasha cited
the case of S v Tazwinga 1968 RLR
121.
On
the other hand Ms Ratisai submitted
that the evidence led must show beyond a reasonable doubt that the accused had
the requisite intent to commit the offence. In this case she submitted that the
accused was severely provoked as a result of which he lost control of himself
as he blacked out. She submitted that the accused must be found guilty of
culpable homicide instead.
Concerning the defence of black-out Ms Ratisai referred to the case of S v Evans 1985 (1) Z.L.R 95(SC). I must
point out that the accused never raised a defence of black out in his defence
outline. He only referred to coming out of a trance at the time he realized
that the deceased had been injured.
The
post-mortem report compiled by Doctor Mugwagwa describes the deceased's
injuries as-'fractures on the legs and left hand. Several cuts all over the
body and head.' The cause of death is given as resulting from multiple injuries
as described.
Although
there was no issue regarding the production of the post-mortem report it is not
sufficiently detailed in some material respects. The investigating officer
stated that he noted the deceased's body had eleven cuts. The photographs he
produced depict some wounds to the legs, hands, chest and head. However, the
severity of the injuries is not known. Doctors who conduct post-mortem
examinations are normally expected to give details like depth of cuts and
amount of force used. In the absence of such details the state should routinely
call the doctor to elaborate on his report.
We
agree that the defence of self defence cannot be sustained. The accused, by his
own admission was the aggressor as he started to assault the deceased with a
stick. That act constitutes an unlawful attack on his part. If the deceased tried
to use an axe against him self defence could only have been raised by her in
the circumstances. In any event, in relation to the accused, if there had been
any attack against him he was no longer under such attack the moment he disarmed
the deceased. In addition the means used would certainly be immoderately
excessive to import intention on his part.
The
defence of blackout does not appear to have a sufficient foundation. In the
case of S v Evans the appellant was
convicted of culpable homicide arising from the collision of the train he was
driving with another. It was established the brakes in the train that was
driven by the appellant had been applied accidentally. The appellant's defence
was that he had a black-out as he did not recall what happened prior to the
accident. Commenting on this defence on appeal, DUMBUTSENA C.J. had this to say
at p 99-100:
“The appellant's defence, as already
mentioned, is that he had a black-out. He testified to not remembering what
happened after he had seen the distant warning signal. He denied having fallen
asleep or having applied the air brakes. The appellant was persistent in his
defence of a black-out. In reply to the warn and caution he said: "From
the time of seeing the amber until after the accident I had a black-out".
In his evidence in court he asserted that he had a black-out and could not
remember what happened before the accident.
Is this sufficient evidence to
establish this type of defence? In Bratty v Attorney-General for Northern
Ireland [1963] AC 386 (HL) (NI), a case in which the appellant had told the
police that when he was with the girl he had a "terrible feeling" and
that a "sort of blackness" came over him, at his trial three separate defences were left open to the
jury, namely, (1) automatism by reason of suffering from psychomotor epilepsy;
(2) that he was guilty of only
manslaughter because he was "incapable of forming an intent to
murder on the ground that 'his mental condition was so impaired and confused
and he was so deficient in reason that he was not capable of forming' such
intent; (3) that he was guilty but insane in consequence of suffering from a
disease of the mind within the McNaughton Rules". The case is of interest
to us because of what was said by Lord Denning about the defence of a black-out
at 413-14:
It
is not sufficient for a man to say 'I had a black-out': for 'black-out' as
STABLE J said in Cooper v McKenna, Ex parte Cooper 'is one of the first refuges
of a guilty conscience and a popular excuse'.
In R v Dervish [1968] Crim LR 37
Bratty's case was considered with approval by the Court of Appeal (Criminal
Division). The commentary on that case explained the above words as follows:
Of
course a jury might, as a fact, be left in real doubt where they have nothing
to go on but the bare, unsupported word of the accused person, if he appeared
to be a witness of truth; and it would be an artificial rule which debarred
them from considering the defence in those circumstances. The requirement of
some supporting evidence is based on obvious considerations of policy -
otherwise it might be all too easy for guilty persons to procure an opportunity
of acquittal on fabricated evidence.
In his book Textbook of Criminal Law
2nd Ed at 663 the learned author Glanville Williams says of this defence:
Although
the 'black-out' defence is legally recognised, it is a defence too easily
feigned to be accepted without severe scrutiny. So the courts have laid down
that the evidential burden in respect of the issue of non-insane automatism
rests upon the defendant, and, moreover, that medical evidence must (where
appropriate) be given in its support before the judge is bound to leave this
issue to the jury. If there is sufficient evidence G
(whether coming from the defendant or from the Crown) to pass this
'initial hurdle' - to 'lay a foundation' for the defence, as the judges
sometimes say - the jury will be directed that the persuasive burden of proving
the mental element rests on the prosecution.
See also Smith & Hogan: Criminal
Law 4th Ed at 40.
There is in the requirement for an
accused person to lay a foundation for the defence of black-out some similarity
between that defence and the defence of compulsion. In the defence of
compulsion the accused should adduce some evidence to show that his mind was
overborne by compulsion at the time of committing the offence. Mr Justice BARON
ACJ, when considering the defence of compulsion in S v Mapfumo & Ors 1983
(1) ZLR 250 (SC), said at 253F-G what I consider appropriate to the appreciation
of the foundation to be laid in the defence of black-out. The learned Acting
Chief Justice said:
There
is . . . no onus on an accused person; all that is required is that there
emerge from the evidence, whether adduced by the prosecution or the defence,
material sufficient to raise the issue in question as a realistic issue, and to
speak of this as an onus resting upon an accused, quite apart from its extent,
can be misleading.”
In that case the
court concluded that accused had laid sufficient foundation for a defence of
blackout. It took into account that evidence was led from a doctor who was
called by the state. Among other things he was asked on what happens to a
person when he experiences a black-out to which he responded that he physically
collapses and passes out. It was also put to the doctor the life of a trial
driver which he agreed was unusual on account of the irregular shifts, the
early hours, irregular meals and lack of adequate sleep. In finding merit in
such defence, the learned chief justice went further to say at p 102:
“In my judgment the appellant through
Dr Gwisayi, a prosecution witness, laid a proper foundation for the defence by
introducing evidence from which it may reasonably be inferred that the
appellant suffered a black-out. His evidence alone would not have been
sufficient. It seems to me that on this evidence alone the foundation for the
defence of a black-out has been laid albeit on a balance of probabilities. On
this evidence alone the persuasive burden of proving that the appellant was
negligent now rests on the prosecution.”
In
the present case we are not persuaded that the accused laid a foundation for
such a defence. Apart from his mere say-so there is no other evidence from
which one may infer that he experienced a black-out. It is incredible that he
could recall how he assaulted the deceased with a stick but could not recall
how he assaulted her with an axe. There is no evidence that there was a lull between
the assault with a stick and the assault with the axe. In addition, the
accused's son who responded to the deceased's cry did not find the accused
present. We also note that the accused was able to recall what he did after
injuring the deceased.
Coming
to the defence of provocation, the first thing to note is that by virtue of s
238 of the code, provocation is not a complete defence. The provision on
question sates that:
“Except
as provided in section two hundred and thirty-nine and subject to any
other enactment, provocation
shall
not be a defence to a crime but the court may regard it as mitigatory when
assessing the sentence to be
imposed for the crime.”
On
the other hand, s 239 provides that:
“(1)
If, after being provoked, a person does or omits to do anything resulting in
the death of a person which
would
be an essential element of the crime of murder if done or omitted, as the case
may be, with the intention or realisation referred to in section forty-seven,
the person shall be guilty of culpable homicide if, as a result of the provocation
(a)
he or she does not have the intention or realisation referred to in section forty-seven;
or
(b)
he or she has the intention or realisation referred to in section forty-seven
but has completely lost his or
her
self-control, the provocation being sufficient to make a reasonable person in
his or her position and
circumstances
lose his or her self-control.
(2) For the avoidance of doubt it is declared
that if a court finds that a person accused of murder was
provoked
but that
(a)
he or she did have the intention or realisation referred to in section forty-seven;
or
(b)
the provocation was not sufficient to make a reasonable person in the accused's
position and
circumstances
lose his or her self-control;
the
accused shall not be entitled to a partial defence in terms of subsection (1)
but the court may regard the
provocation as mitigatory as provided
in section two hundred and thirty-eight.”
In
his Commentary on the Criminal Law (Codification and Reform) Act Professor G.
Feltoe has this to say at pp 221-222
“Provocation can be partial defence
to a charge of murder but it is not a defence to any other crime, although it
can be a mitigatory factor. (Previously provocation could also have been a
partial defence to assault with intent to do grievous bodily harm. This no
longer applies because the Code has merged together what used to be the
separate crimes of common assault and assault with intent to do grievous bodily
harm.)
In cases other than murder the
defence of provocation operates merely to mitigate sentence.
In murder cases there is a two-stage
approach.
The first stage is to decide whether
X had intention to kill when he or she reacted to the provocation. If X did not
have intention to kill, X will not be convicted of murder but only of culpable
homicide.
If X had intention to kill, then the
court will proceed to the second stage, which is to decide whether X lost his
or her self-control and killed intentionally in circumstances where even the
reasonable person, faced with this extent of provocation, would also have lost self-control.
If X did lose his or her self-control and the reasonably person would have done
likewise, X will have a partial defence and will be found guilty of culpable
homicide and not murder. (In South Africa on the other hand if X killed
intentionally X will be found guilty of murder and the provocation will only
act in mitigation of sentence.)”
This is the
approach that was adopted in S v
Tenganyika 1958 R&N 228 (FSC) and S
v Nangani 1982 (1) Z.L.R. 150 (SC). In Nangani's case which has a closer
bearing to the present case, the appellant and the deceased had lived together
for two years and a child had been born from the union. They subsequently
separated. When the appellant went to look for the deceased he found her
sharing a blanket with a man outside the hut. When the appellant asked who the
man was the deceased whispered something to the man who then ran away. The appellant
pursued the man and returned to where he had left the deceased. On his way back
he met the deceased who started to run away. The appellant who was armed with a
rifle then shot and killed the deceased. The appellant was convicted of murder
with no extenuating circumstances. The conviction was set aside on appeal and
substituted with culpable homicide. This is what FIELDSEND C.J. had to say with
regard to the defence of provocation at pp 158-160:
“In Tenganyika v R (supra) the Federal Supreme Court,
albeit to some extent obiter, considered a different approach to the problem,
perhaps best summarized at page 245 of Burchell and Hunt as follows:
"Where
the charge is one of murder and there is evidence of provocation, it was held
that two separate inquiries must be made. First, was intention to kill present?
In making this inquiry account must be taken of all the facts - provocation, intoxication
and any other eccentricity or abnormality the accused may have had. And since
the test for intention is subjective, at this stage provocation will be
considered subjectively. If the court is left in doubt as to whether the
intention to kill was present the accused could, at most, be convicted of
culpable homicide. On the other hand, if the court is satisfied that the intent
to kill was proved, the Federal Supreme court took the view that a second
inquiry must be made, namely whether the "provocation which the accused
received was sufficient to warrant a verdict of culpable homicide despite The
fact that the killing was intentional. On this point TREDGOLD CJ, held the test
to be objective 'whether the accused was so provoked that, in the Circumstances,
a reasonable man would have float his self-control.'"
The learned CHIEF JUSTICE did not, of course, say that
where an intention to kill has been established, an accused can escape
conviction for murder by showing merely that in the circumstances a reasonable
man would have lost his self-control. Clearly there would have to be some
evidence '(leaving aside the question of onus) that the accused himself lost
his self-control. As he said at p 237:
"...
to suggest that provocation is only a defence when it excludes the intention to
kill is to narrow its limits unwarrantable ... it is not difficult to envisage
circumstances in which it might properly be held that the had been provoked
beyond endurance and to a point when any ordinary person would have been
deprived of his self-control and acted fin the same mariner." '(Emphasis
added).
The question what is meant by loss of self-control,
and how that may diner from a lack of intention are separate matters. As LORD
DIPLOCK indicated in Phillips v R
(1969) 53 Cr App R 132 at p 135, A loss of self-control is not absolute but is a
matter of degree: there are many intermediate stages between icy detachment and
going berserk. And as SCHREINER JA said in Krull's case (supra) at pages
398-99:
"That
acts done after a man has lost control of himself may still in a sense be said
to be Intended is no doubt true. But also it may fairly be and is, said that
such acts are not really intended ... Whether one says that a provoked man
loses the power of self-control or becomes unable to form the intention to kill
seems to me to be substantially a question of the choice of words. Either form
is probably only a roughly approximate description of the actual mental
processes Legal systems can only attempt by one approach or another to give
effect to Me basic Idea, which is that the
C provoked person may have been
so upset that the mental element requisite for murder may not have been
present."
Tenganyika's case (supra) has been followed in this
country, despite the criticism of it in Krull's case (supra). See for example R v Bureke, 1959 (2) R & N 353 (FSC); R v Majhaye, 1965 RLR 106. We are not
bound by these decisions - see s 24 (2) of the Supreme Court Act, No. 28 of
1981 - but unless there is good reason for departing from them we would not
want to give a new direction to the law at this stage: Practice Direction
(Precedent), 1981 (4) SA 1981.
There are arguments both of principle and expediency
in favour of each of the two approaches. The South African approach follows the
logical and systematic application of the strict law that an intentional
killing of another person is murder unless there is a legitimate excuse, such a
justifiable homicide (R v Koning, 1953 (3) SA 220 (T) or self defence (R v
Mathlau, 1958 (1) SA 350 (AD)). To act under provocation, it is said, is not to
act with any justification. As SCHREINER JA put it in Krull's case (supra) at p
399C:
"In
self-defence the motive is fear, which from the law's viewpoint is a better
motive than anger, which operates in provocation."
Provocation may be an extenuating circumstance and a
mitigating factor, but once it is established that a person acted with intent
to kill then he is guilty of murder. In my view there are two answers to this
view.
“First, if the law recognizes that provocation is an
extenuating circumstance then there is no question of principle involved in
recognizing it as a circumstance which may reduce murder to culpable homicide.
It is only a question of the effect to be given to it. Both self- defence and
duress - see S v Goliath, 1972 (3) SA 1 (AD) - are now recognized as defences
to murder. Either may be a complete defence or may operate to reduce murder to
culpable homicide, depending on the facts. But in each case it is accepted that
what is excused or reduced is an intentional killing. There is therefore no
anomaly in recognizing that provocation may have a similar effect, or at least
may reduce murder to culpable homicide even where the killing is intentional.”
The accused in the present matter was
provoked by words uttered by the deceased that he was not the father of their
child and that the deceased was not ill. This is what prompted him to assault
the deceased with a stick. Thereafter he draws a blank as regards how he
attacked the deceased with an axe. However, as previously noted, the accused
recalls what he did after axing the deceased. In our view we do not accept that
he suffered a black-out before he struck the deceased.
It is also clear that the accused was
not in any danger when he struck the deceased with the axe. The nature of
weapon used can only mean that the accused had some intent to murder the
deceased notwithstanding the provocation. The nature of the attack on the
deceased in light of the injuries sustained can only mean that the accused must
have lost control of himself but not the intention to kill. However, in our
view the accused did not mean to kill the deceased in the sense of desiring to
bring about her death. This is because of the nature of the attack itself which
was indiscriminate. It can only have been perpetrated by someone who was
enraged. We do not accept that he had lost self-control as not to appreciate
what he was doing. He must have realised that there was a real risk or possibility
that his conduct might cause death, but continued to engage in that conduct
despite the risk or possibility. He is accordingly found guilty of contravening
s 47 (1) (b) of the code which is equivalent to murder with constructive
intent.
Ratisai Law Practice, accused's legal practitioners
Attorney-General's
Office, legal practitioners for the state
