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 ...
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....,.
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.
Counsel for the accused 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. Counsel for the accused 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.
Counsel for the State 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, counsel for the State 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 counsel for the accused.
The Statement of Agreed Facts was accordingly admitted as exhibit 1.
Counsel for the accused 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….,.
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 the 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…,. 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…,. 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 postmortem 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….,.
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….,.
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….,.
Section 47(1)(b) of the Criminal Law (Codification and Reform) Act 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) of the Criminal Law (Codification and Reform) Act provides as follows:
“Any person who causes the death of another person –
(a)…,.
(b) Realizing 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) of the Criminal Law (Codification and Reform) Act 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) of the Criminal Law (Codification and Reform) Act 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….,.
Accordingly, and as a sequel to the confirmations by counsel for the accused, 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 counsel for the State, to agree to the lesser charge of culpable homicide, was properly informed and given….,.
