BERE J: On the night of 29 April 2013 Shingairai Shoko the
mother of the deceased went into labour from her pregnancy which she had
concealed from her mother, the accused.
Shingairai awoke the accused whom she advised she was
experiencing serious abdominal pains. The accused accompanied her to some field
within the yard where much to the chagrin of the accused the witness delivered
a baby under the guise of relieving herself. The witness was barely a metre or
so from the spot where the accused was also relieving herself.
The newly delivered baby died in mysterious circumstances
but the investigations that followed pointed to the accused as the person who
had authored the demise of the deceased leading to the charge of murder as
defined in the Act being preferred against the accused person.
The accused denied the charge and in her defence outline
pointed to her daughter Shingairai as the person who cut short the deceased's
life soon after delivery.
The State case centred around the evidence of Shingairai
Shoko as the star witness, who gave evidence together with Robert Togara, a
member of the neighbourhood watch committee charged with the duties of rural
policing in Chikofa Village under headman Chipindu in Chivi District where the
alleged murder of the deceased took place.
The State case was also supported by the evidence of Shirly
Madoro, Regina Mabota, Felix Hondoma and Dr Chagonda whose evidence was allowed
into the record of proceedings by way of admissions as provided for by s 314 of
the Criminal Procedure and Evidence Act [Cap 9:07].
Further, the post-mortem report (exhibit 1), and the
accused's confirmed warned and cautioned statement (Exhibit 2) were also
produced to buttress the State case.
In denying the allegations, the accused admitted to have
authored the confirmed warned and cautioned statement which on the face of it
was highly incriminatory of her but in court disowned its contents alleging it
did not represent the truth. She maintained in her defence outline that she was
motivated to assume responsibility over the death of the deceased in a hopeless
attempt to cover up for Shingairai who was the one who had killed the deceased.
In dealing with this case I am mindful of the often quoted
words of GREENBERG J by WATERMEYER AJA in the much celebrated case of R v
Dofford[1]where the
learned judge remarked as follows:
“----- no onus rests on the accused to convince the court
of the truth of any explanation he gives. If he gives an explanation, be
improbable the court is not entitled to convict unless it is satisfied, not
only that the explanation s improbable, but that beyond any reasonable doubt is
false. If there is any reasonable possibility of his explanation being true,
then he is entitled to an acquittal.
It is with these elementary guiding principles that I will make an attempt to
deal with the evidence that was presented in this case in our effort to answer
the simple issue that we had to grapple with for the three days which we
devoted to this case – who killed the deceased?
The evidence of Shingairai Shoko was preceded by the warning in terms of s 276
of the Act[2] because of her
being an accomplice to the offence charged against the accused. It followed
that her evidence had to be looked at with heightened caution to avoid possible
deception.
Shingairai's story began with her going into labour on the night of 29 April
2013 and her subsequent delivery of the deceased that same night. It was her
undisputed evidence that when she delivered the deceased was alive a position
which was well supported by the accused.
There was a divergent of explanations as to what happened when the witness
delivered her baby. The witness's evidence was that immediately after delivery
the accused sent her to collect a sack but upon her return to the place of
birth she found the deceased no longer breathing. She pointed a finger at her
mother as having killed the deceased.
The witness further testified that once she gave the accused the sack she went
home to sleep leaving the accused to deal with the burial of the deceased and
that she did not know where the deceased's remains were interred.
As a court we had extreme difficulties in following this witness's evidence
particularly when she professed ignorance of where the deceased's remains were
buried and her attempt to shift the exclusive knowledge of that spot to her
mother, the accused. This position was refuted by Robert Togara whose
credibility the court found to have been beyond reproach.
It was equally significant that initially the witness
advised the court that she did not know the name of the man who was responsible
for her pregnancy. It was only when she appeared in court on the second
occasion that she suddenly remembered that Lord or Lot was the person who
impregnated her. It is most unusual that a woman would fail to recognise the
person responsible for her pregnancy no matter how her level of intellect is.
When the trial unfolded, it downed on us that in fact the
deceased was not the witness's first pregnancy but the second one. This
inevitably compounded the impact of Shingairai's testimony.
When confronted by Togara and Shirley, two members of the neighbourhood watch
committee about what had become of her pregnancy two or so days after she had
given birth to the deceased, her immediate response was to lie to them that she
had had a miscarriage in that the birth had manifested itself in the excretion
of blood and nothing more. It was only when she could not present evidence of
the discharged blood that she shifted goal posts and disclosed that she had
given birth to a live baby but that the accused had killed this baby by
strangulation.
The alleged strangulation of the deceased became central to the State case
because the State case was built around that theory. Even the accused's own
undisputed confirmed warned and cautioned statement spoke to the death of the
deceased by strangulation.
The difficulty with the position of the State is that it did not accord well
with the findings of the post-mortem report Exhibit 1 which gave the cause of
death as having been due to head injury.
Of all the witnesses who gave evidence in this case it was only the accused who
gave an explanation that possibly explains the head injury to the deceased.
Her explanation was that the key state Witness Shingairai who had all along
denied having been pregnant went into labour under the guise of relieving
herself and dropped the fragile deceased whilst in a crouching position with no
preparation for birth having been put in place because of Shingairai's
secretive approach to her pregnancy. She said when the deceased was born she fell
on a rough surface and she heard her cry once.
She further stated that as Shngairai attempted to lift the deceased she smashed
it on the unfriendly earth surface, she could not tell whether this act was a
deliberate or accidental one. This explanation would be consistent with the
post-mortem report and also run contrary to the method of killing the deceased
which is contained in the accused's confirmed warned and cautioned statement.
The accused explained the circumstances surrounding her offer of two goats to
the two members of the neighbourhood watch committee. She explained that
although she admitted the offence to them all she wanted to do was to protect
Shingairai.
The accused's explanation might be false but it is reasonably true.
We are all agreed that other than the unsatisfactory evidence of the key
witness for the State, Shingairai, this witness is mentally challenged. We all
observed this and even her biologically mother the accused testified to this
effect and said it was precisely because of this that she was advised by
teachers not to waste her resources sending her to school.
Faced with the evidence of such a witness, being the star witness for the State
who is also an accomplice, we found it unsafe to convict the accused on the
main charge of murder.
However we reckon that in deciding to secretly bury the remains of the
deceased, the accused collided with another statutory obligation, viz s 106 of
the Criminal Law (Codification and Reform) Act [Cap 9:23]
After the mysterious death of the deceased, the accused and her daughter
confirmed to secretly burying the deceased's remains in violation of the law.
In passing we wish to spare a page on the conduct of Robert Togara and Shirley
Madoro, the two members of the neighbourhood watch committee charged with among
other things policing Chikofa Village, under headman Chipindu, Chivi area.
It is refreshing to note that in a country which is literally clueless as to
how effectively it can stamp out corruption in almost every sector we have
simple citizens of this country who are able to resist the temptation to be
corrupted as they engaged in their policing duties. These were offered two
goats by the accused in order to put a lid to the crime which the accused was
facing. The two remained steadfast in the execution of their duties. Such
conduct cannot go unnoticed.
It was also the vigilance of Togara which exposed this crime. The enthusiasm of
this officer in the execution of his duties is commendable and one hopes that
the authorities that be will also appreciate his potential and give it due
recognition.
In conclusion, having considered the case the court is of the unanimous view
that the evidence has not established the accused's guilt beyond a reasonable
doubt. She is entitled to an acquittal on the main charge. The accused is found
not guilty and acquitted of murder but found guilty of contravening s 106 of
the criminal Law (Codification and Reform) Act [Cap 9:23], which is a
competent verdict to the charge of murder.
Sentence
In considering an appropriate sentence, we have been guided by the following
factors; the accused is a first offender with unusually heavy family
responsibilities thrust upon her.
She is not only looking after her mentally challenged daughter, Shingairai but
is also looking after Shingairai's child from an earlier abortive marriage. She
has been in custody ever since these allegations arose on 3 May 2013. The
accused strikes us as a frail woman who requires to be treated with extreme
mercy.
In aggravation, we note with concern the accused's inclination towards crime.
She attempted to bribe the two members of the neighbourhood watch committee
with two goats in order to stop them from carrying out their duties.
The accused is supposed to be Shingairai's mentor but she corrupted
the girl's thinking by conspiring with her to depose of the deceased in the
manner they did.
The accused is sentenced as follows;
Six months imprisonment of which three months imprisonment is suspended for a
period of 5 years on the condition that within that period the accused person
does not commit any offence involving concealment of birth of a child for which
upon conviction she will be sentenced to imprisonment without the option of a
fine.
The remaining three months imprisonment is wholly suspended on the condition
that the accused completes 105 hours of community service at Chamatutu Primary
School in Chikofa Village, Chivi. The community service is to be performed
every Monday to Friday other than a Public Holiday from 0800 hours to 1300
hours and then from1400 hours to 1600 hours. It is to be performed to the
satisfaction of the person in charge who may on any good cause shown grant
leave of absence on any number of days. Such leave of absence shall not form
part of the community service performed. To start on 23 June 2014.
The Criminal Division of the Attorney General,
the State's legal practitioners
Messrs Saratoga Makausi Law Chambers, accused's legal practitioners
BERE
J ______________________
