KAMOCHA J: The 36
years old accused was charged with the crime of murder. It being alleged that on 9 March 2007 at
number 2 Tuli Close, Richmond, Bulawayo he did wrongfully, unlawfully and
intentionally kill and murder Rayaan Peterson a young child in his lifetime
there being. The said child was his
son. When the charge was put to him he
tendered a plea of not guilty.
The state outline was read and
produced as exhibit one while his defence outline was read and produced as
exhibit 2. In his long winded defence
outline he said on the fateful day there was a family gathering at number 2
Tuli Close, Richmond, Bulawayo. He
alleged that he had planned the family gathering with his cousins, Roy Smear
and Robert Nzali. Beers were bought and
on arrival at the venue he was told that Thandiwe Sibanda and the child were
there. He referred to Thandiwe Sibanda
as his wife but other people referred to her as his girlfriend.
The accused went into the house and
took the child from his mother (child's).
He asked the mother how the child was and was told that he was not quite
well but the accused himself gained the impression that the child was not
bad. He said he had not seen the child
for more than a month. He therefore
decided to take a walk to the shops with the child.
While at the shops he bought some
more beers and gave the child a few sips of beer as the child kept on nagging
by gesture. (Meaning the child kept on
asking for beer).
On his way back he decided to go
through a bushy area where he wanted to answer to the call of nature. While he was there he was approached by three
people from behind. One of them had
dreadlocks. One of them asked for
matches from the accused but he did not have any. The three people set upon him and struggled
with him wanting to drag him into the bush and beat him and the child. He held the child in his arm as the two were
being pummeled with blows by the assailants.
As the scuffle ensued a car approached and shone its lights on the
assailants who immediately disappeared into darkness into the bush. That gave the accused a chance to run back to
number 2 Tuli Close.
On arrival he noticed that Roy Smear
was not there. When he inquired about
his whereabouts he was told that people at the venue in fact believed he
(accused) had gone with Roy Smear and others.
Since only women had remained he decided
to go and sit at a car that was parked nearby.
When the mother of the child asked
to get the child from the accused the accused refused to give the child to her
stating that he had not seen the child for a long time and wanted more time
with him. The accused's sister brought a
towel so that accused could wrap the child with it.
The accused said he requested to
talk to the mother of the child but she said it was cold outside and went on to
further suggest that they should sit inside the car. While they were in the car he gave the child
more sips of beer. That infuriated the
mother who complained that the child was not well. She went to tell the accused's cousin that he
was giving beer to the child.
After supper the child appeared
sleepy. Accused and the mother of the
child went to ask for a place for the child to sleep and were told to put him
in the children's room.
Thereafter he and the mother went to
a shed within the premises where the two had a chat for a long time before the
accused went to join other men while she joined other women.
When it was time to collect the
child and go to her uncle's place to sleep the mother of the child discovered
that the child was breathless. People
were alerted and a decision was taken to convey the child to hospital where the
child was pronounced dead.
The accused said he loved his son so
much and would never have done anything to hurt, harm or let alone cause his
death. While admitting being with the
child at all material times he denied causing his death.
What is strange and sticks out like
a sore thumb is the fact that the accused never mentioned the alleged mugging
by three assailants to all his cousins and friends. Not only did he not tell the people at the
family gathering but he also did not mention that to the police when they
recorded his warned and cautioned statement.
In his long extra-curial statement he said this:-
“I do not admit the charge.
I did not kill my son. I loved
him a lot. We had a family gathering on
that day. On that day I was with my son
who I hadn't seen for some time. The
reason being that he was staying with his mother. It was a day where we gather and have a beer
drink and some food. During this period
I did give my son some alcohol but it was only a few sips. That was only after he suggested for some by
his gestures. There was quite a number
of people there. Later that evening my
son was now irritable and wanted to sleep so both my wife and I took him to the
bedroom to sleep. In the same room there
were other children that were sleeping.
I remember my wife coming and telling me she wanted to leave to her
uncle's place where she was spending the night so she asked me to take the
child for her. I told her to go and get
him seeing I was still enjoying myself with the other men. We were actually braaing some meat. She came back several times worrying me to
take her half way with the child. When
we got to the room she entered first and when she touched the child she started
screaming which led the other family members coming in. They tried to resuscitate him but to no avail
which led us to rushing him to Mpilo Hospital where we were told he had passed
away.”
As can be
seen from the above statement he never mentioned the attack on him and the
child by some unknown assailants. The
story only features in his defence recorded some 4 years 6 months later on 24
October 2011 two days from the date of his trial.
His extra-curial statement was
produced by consent as exhibit 3.
Exhibit 4 was an affidavit by Cst Bhebhe who identified the body of the
deceased to Dr I. Jekenya who examined the remains of the deceased and compiled
a post mortem report exhibit 5. The
doctor observed and recorded the following injuries on the remains of the child:-
External examination
Under marks
of violence he noticed some finger marks around the neck and base of the chin
and bruises. There was a total fracture
dislocation of the lower upper arm just above the elbow.
Internal examination
Under this
head he noticed the following:- The lung
was pale and over inflated. Bruised back
of the chest wall from inside. Old
healing fracture of the left seventh rib towards the back midline and right rib
near the midline. The stomach contained
copious amounts of fluid – liquor. The
liver had multiple raptures especially on the right back and midline of the
liver and there was massive subcapsula (under liver sheath) hematoma.
The doctor remarked that the pale
organs indicated severe hemorrhage and in this case it was caused by bleeding
from the ruptured traumatized liver due to severe force that was used.
The findings on the neck were
indicative of manual strangulation which on its own could have caused
death. Similarly, the hemorrhage on its
own could have caused death. As a result
of these findings the doctor opined that this was an intentional murder and was
effectively and thoroughly carried out.
The old healing fractures of the ribs were suggestive of previous child
abuse by the assailants.
His conclusion was that death was:
a)
Due
to severe hemorrhagic shock and manual strangulation
b)
Liver
traumatic ruptures
c)
Callous
murder and
d)
Domestic
violence
The evidence of the following witnesses was admitted by
consent in terms of the provisions of section 314 of the Criminal Procedure and
Evidence Act [Chapter 9:07] Isaac Makaya, Robert Nzali, Bimha Wilfred, Cst
Bhebhe and Dr I. Jekenya.
Three witnesses gave viva voce evidence namely the mother of
child Thandiwe Sibanda, Roy Smear and Vanisha Timm. Their evidence is largely common cause and
corroborative of each other.
Thandiwe Sibanda said the accused had phoned her requesting
to see the child. She went to the venue
and arrived at around 5p.m. The accused
arrived shortly thereafter. The child
was about 2 years old at the time. On
arrival accused took the child from its mother and went out of the house while
she remained inside with accused's cousin cooking. The accused went out of the premises with the
child and was away for about 2 hours and only returned after night fall at
around 7p.m. It had become dark and a
bit cold outside.
The witness told the court that she and the accused's cousin
thought the accused and the child had gone to the shops with other men but that
was not the case.
On his return the witness asked him where he had been since
he had not gone out with other men. His
reply was that he had taken a walk with the child. She noticed that the accused had a swelling
on the left side of his forehead and the child had a scratch below his left
eye. She asked the accused what had
happened but the accused told her that the child had scratched himself. Most importantly the mother observed that the
child was breathing heavily almost gasping for breath. She asked the accused why that was so. His reply was that he had given the deceased
some beer without saying what type of beer but said he had given him a little
bit of it.
I pause to observe that he had in fact given the child a lot
of it because the doctor who examined his remains found copious amounts of
fluid – liquor in the stomach. It is
difficult to understand why the accused did that. His story that he gave him little sips is
therefore not true.
The accused would not let the mother have the child. The accused left the kitchen where they had
been standing and went to sit in the veranda with the child in his hands. She followed him as she had become worried
about the condition of the child. When
she got to where accused was she noticed that the child was no longer breathing
heavily like before and thought he had fallen asleep. The accused had made the child lie in his
arms face down. She then suggested that
the child should be taken to bed. The
accused would still not let her have the child but stood up with the child in
his hands. They went to the spare
bedroom together and left the child there to sleep. The accused then suggested that two of them
go and sit at a garage like shelter.
To her surprise each time she asked him to let her have the
child he refused. He always said the
child was alright and fine. So he never
allowed her a chance to take the child and look at him closely that was why all
she could see was the scratch below the left eye. The accused would not allow her to have the
child even when she could hear him breathing as if he was snoring and gasping
for breath.
The accused acted in that manner for fear that the witness
would have noticed other injuries on the deceased. For instance she would have probable observed
the finger marks around the neck. She
also could have discovered much earlier that the child was lifeless and that
his face was swollen. He deliberately
prevented her from discovering earlier that the child had died. As a result the child was only discovered to
be breathless after she had wanted to collect him and go to her uncle's place
where she was going to sleep.
The witness told the court that the accused's mother did not
want him to be in love with her. She
never accepted the child and never went to see him until he died. She said the accused's mother first saw the
child in the mortuary.
She told the court that some other time before the fateful
day the accused had visited her and the child.
During his visit when the child was crying he took him out with him to
go and make him stop crying. He was away
with the child for some time and returned.
The next day she noticed that the child had a blood shot eye. The child would scream when she was washing
him especially when she touched his sides.
When she told the accused he suggested that the child should be taken to
the clinic and gave her some money as medical expenses. The eye was treated but the pain on the sides
was not. The mother told the court that
she never assaulted the child herself.
This seems to suggest that the fractures to the seventh rib and the
eight right rib occurred during the accused's visit. The child did not have the pain before the
accused's visit. The accused must have
inflicted those injuries as the child could not have inflicted them on himself.
The witness told the court that the accused had disputed
paternity in this matter. He even
deserted the witness when she was two months pregnant and only returned when
the child was six months old. She
thought there was a change of heart on the part of the accused as he seemed to
have accepted the child. He even
supported the child.
Under cross-examination the witness emphasized that when she
asked the accused where he had gone to with the child he said he was just
somewhere outside. He never told her
that he had gone to the shops. She also
was emphatic that when she asked him why he had a swelling on the left forehead
the answer he gave her was that he did not know what happened to him.
I pause to observe that if he had been attacked and mugged
this would have been the opportunity to tell his girlfriend about it. She said accused never mentioned any attack
on him.
The witness told the court that other than having a flu the
child did not have any other problem when she went with him to the
gathering. He was given paracetamol for
the flu.
It came out clearly under cross examination that after the
child was about 8 or 9 months accused appeared to love him and openly regretted
the fact that he had denied being the father of the child due to the influence
of his family members.
The witness told the court that the accused had taken some beer
but was not drunk at all. This is
supported by the other witnesses. This
witness was fair, and did not want to exaggerate things. She told this court that she and the accused
reconciled after the death of the child and have since had two children together
aged 3 years and 9 months respectively.
She had nothing against the accused.
She was a credible witness who is worth to be believed.
Her evidence is corroborated by that of Roy Smear and Vanisha
Timm who both stated that accused never mentioned the attack on him and the
child by some unknown assailants.
The accused had no witnesses to call but gave evidence
himself and stuck to what he said in his defence out line. However, he faired very badly as he was
unable to explain why he had not mentioned the attack on him and the
child. His explanation that he did not
see it necessary is nonsensical and clearly false. The story of the attack is clearly a hopeless
after thought which must be rejected.
The court finds that the accused took the child away for two
hours. When he returned with the child
he had sustained the injuries from which he died. The only reasonable inference that can be
drawn from all the proved facts is that the accused inflicted the injuries from
which the child died. The attack on the
deceased was a brutal and callous one.
The accused planned the murder.
He phoned the mother of the child saying she should bring the child as
he wanted to see him.
On arrival at number 2 Tuli Close he was told the deceased
and his mother were already there. He
took no time and immediately went to take the child from the mother. After taking him away from the mother he
again wasted no time and went away with him to some unknown destination where
he carried out the murderous attack on the child. He was away for about 2 hours with the
deceased.
On his return he would not allow the mother to have the child
thereby preventing any early medical treatment of the child. He kept on saying the child was alright when
he knew that he had brutally assaulted the child. His aim was to ensure that the child
died. That explains why he would not
allow the mother to have him before he died.
The accused is clearly guilty of murder with actual intent.
Extenuating circumstances
Defence Counsel
Those are circumstances which reduce
the accused's moral blameworthiness.
In S v Chaluwa 1985 (2) ZLR
121
The seriousness or gruesomeness of
an offence can never exclude the possibility of extenuation. The facts of the case must be considered with
possible mitigating circumstances in order to arrive at a proper finding as to
the weight to be given to each.
Where the conviction is based on the
findings of accused's version these findings even if unlikely cannot be
excluded from a consideration of extenuating circumstances.
In casu is clear that accused had
psychological pressure from close family members especially the mother who
despised his wife. She even did not see
her grandson. That could have disturbed
and confused the accused.
Accused's doubt of paternity which is indicative of him
deserting the mother of the deceased.
Such conduct is indicative of immaturity and lack of
experience of life thoughtlessness.
S v Chinhinga SC-79-02
accused had taken alcohol had taken 5 beers which could have had a serious
impact with accused's mental balance.
That is all.
State Counsel
The decision whether there are
special circumstances lies with the Judge and assessors S v Jaure 2001(2) ZLR
393.
Going by the definition – it is so
broad as to encompass any factor that may reduce the accused's moral
blameworthiness.
The psychological pressure seemed to
be one of those factors which serves to reduce the accused's moral
blameworthiness. The state concedes that
that factor constitutes extenuating circumstances.
The accused was not immature at the
time he committed the offence. The doubt
of paternity cannot be considered as extenuating. Even if he doubted that the child was not his
every human being has got a right to life.
There is only one factor………………. That is all.
Reply
Accused would
even visit his mother alone. That on its
own counts as an extenuating circumstance.
By court
Although
accused himself did not want to open up about the psychological pressure from
the relatives especially his mother evidence shows that there was pressure. Accused's mother never even saw the deceased
until he died.
The concession by the state is
proper in my view. Psychological
pressure from relatives caused the accused to do what he did. In the result I find that that amounts to
special circumstances.
Public
Prosecutor - accused is a first offender
Mitigation
Defence
Counsel - accused is 36 years
old. Accused has two minor children with
deceased mother aged 3 years and 9 months respectively.
Accused is the bread winner of that
family through his work as a mechanic.
The matter has taken 4 years 6 months to come to trial. A sentence of 12 years is suggested.
State Counsel
This was a pre meditated
murder. It was a brutal and callous
attack on the innocent child a young precious life was lost unnecessarily. It is the duty of this court to protect the
sanctity of life – see the Jaure case
where it held that inspite of the finding of extenuating circumstances the
death sentence may still be imposed if the Judge concludes that the extenuating
circumstances far outweighed by the aggravating features. That decision should be made by the Judge
alone although assessors may give informed opinion to the Judge. The court can still impose the death sentence
if the scales are tilted the other way.
In the event that the court makes a
finding to the contrary the state is guided by the following cases – Denis Ncube v S SC-114-93. Accused had
been sentenced to death. On appeal it
was found there were extenuating circumstances 20 years imprisonment was
imposed.
Mahlalela
Nyoni v S SC-253-92 accused had
been sentenced to death on appeal 20 years was imposed.
Sentence
All that needed to be said on behalf
of the accused has been said and is being taken into account. This is a proper case to impose sentence
other than capital punishment.
In this matter the accused carefully
planned the murder. After brutally and
callously attacking the child the accused gave him copious amounts of alcohol
to drug him. The accused had previously
attacked the deceased breaking two of his ribs.
As if that was not enough he went on to commit is brutal and callous
murder. A young life was unnecessarily
lost. The court has a duty to protect
human life.
For quite some time the court was
entertaining a sentence of life imprisonment but has decided against it at the
last minute and will impose a sentence other than that.
In the circumstances the justice of
this matter will be met by a sentence of THIRTY
YEARS IMPRISONMENT.
Criminal Division, Attorney General's
Office, applicant's
legal practitioners
Dube-Banda, Nzarayapenga & Partners,
accused's legal practitioners
