The accused is facing the charge of murder as defined in section
47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The charge is that on 22 December 2014, at Chiwichabeture
Village 2, Triangle, the accused unlawfully caused the death of Jmes Muchini by
striking him with a wooden hoe handle several times on the back and on the head
intending to kill or realising that there was a real risk or possibility that
his conduct may cause death and continued to engage in that conduct despite the
risk or possibility.
The accused, then aged 22 years, and the now deceased, then
aged 26 years, were siblings and stayed in the same village. It is common cause
that prior to that fateful day a dispute arose pertaining to use of their
father's cattle for ploughing. There are minor differences raised by the State
and the defence as to the nature and scope of the dispute. Apparently, the
accused and the now deceased could not plough together in their respective
fields and their father decided to give the accused four (4) cattle to use as
he had none of his and the now deceased two (2) cattle as he had two of his
own. It is not clear what sparked the dispute on the day in question but after
the accused spanned the four (4) cattle their father stopped the now deceased
from doing the same saying he wanted to discuss certain issues with the now
deceased. This did not go down well with the now deceased who insisted in
spanning the cattle. Their father then tried to prevent the now deceased from
leaving the cattle pen with the spanned cattle and the now deceased reacted in
a physical manner.
It is alleged the now deceased then assaulted their father
and mother which caused the now accused to be involved.
The State alleges that the accused, who was armed with a
hoe handle, struck the now deceased on the back causing him to flee. It is said
the accused chased after the now deceased and struck him with the hoe handle on
the head killing him instantly.
In his Defence Outline, the accused raises the defence of
self-defence in respect of himself and that of their parents. The accused also
alleges he was provoked by the now deceased's conduct hence the defence of
provocation.
The accused said he saw the now deceased attacking their
father with a log used to close the cattle pen causing their father to fall
down. He said the now deceased then turned on their mother whom he hit with
clenched fists. The accused said he tried to defend their parents but the now
deceased said he wanted to kill them and then flee to South Africa. As a
precautionary measure, the accused said he approached the now deceased armed
with a how handle but the now deceased attacked him with clenched fists. The
accused said he then hit back assaulting the now deceased on the back with the
hoe handle causing the now deceased to flee. The accused said the now deceased
was looking for stones to attack the accused but the accused chased after him
up to a stream. At the stream, the accused said the now deceased picked stones
and hit the accused twice. The accused said he reacted by hitting the now
deceased on the back with the hoe handle but one blow accidentally struck the
now deceased on the head.
The cause of the now deceased's death is not in issue. As
per Exhibit 1, the postmortem report compiled by Dr P.N. Magande on 23 December
2014, the deceased had a skull fracture and died as a result of the head
injury. The accused admitted that he is the one who inflicted the head injury
with Exhibit 3(a), being the hoe handle, whose description is as per Exhibit
3(b) as it was one metre in length and weighed 0.96 kg.
In his confirmed warned and cautioned statement, the accused
gave a similar account as per his Defence Outline. The only notable difference
being that in his confirmed warned and cautioned statement he said at the
stream he struck the now deceased twice on the head with the hoe handle killing
him instantly thus making no reference to the single blow in the Defence
Ooutline which he alludes to an accident as he had aimed the back of the now
deceased.
The State only led viva voce evidence from one witness, the
now deceased's wife, Brenda Mandizvidza….,.
We now turn to the evidence of the now deceased's wife,
Brenda Mandizvidza (Brenda).
Brenda, who is 23 years old, had been married to the now
deceased for four (4) years and they had one child. She said soon after the now
deceased's burial, her in-laws ordered her to return to her maternal home.
Brenda Mandizvidza confirmed the dispute over the use of
cattle for draught power as already outlined and said the accused and the now
deceased only used the cattle for one day after their father had given each one
cattle to use before this fateful day. She confirmed that her father in law
stopped the now deceased from spanning the cattle on the day in question when
the accused had already spanned his own set of cattle saying, he, the father in
law had issues to further discuss with the now deceased over the use of these
cattle. She said the now deceased disagreed insisting that he be allowed to
proceed to go and plough the fields and hold discussions later.
In her evidence, Brenda said after the now deceased spanned
the cattle and Brenda was leading them out of the cattle pen her father in law
blocked the exit of the cattle pen using a log and this incensed the now
deceased who jumped out of the cattle pen and removed the log. She said her
mother in law, who was also present at the cattle pen, intervened by assaulting
the now deceased with fists but the now deceased pushed her to the ground. She
said her father in law, in turn, assaulted the now deceased with fists and he
too was pushed away and fell down.
Brenda said the accused, who was apparently lurking in the
vicinity, stealthily approached the now deceased from behind and hit him very
hard with Exhibit 3(a), the hoe handle. She said the now deceased, who was
taken by surprise, staggered when the first blow was delivered on the back and
when two further blows landed on the back the now deceased ran away for his
dear life with the accused in hot pursuit still armed with the hoe handle. She
said her mother in law followed in the same direction and she remained with her
father in law at the cattle pen but followed later. Brenda said as she
approached the stream she heard the thudding sound of someone being assaulted
apparently with a hoe handle. Moments later, she said she met the accused who
was still wielding the hoe handle, and as the accused passed her he told her to
go and collect her dead husband as the accused said he had killed him.
Brenda Mandizvidza said she rushed to the scene where the
now deceased was lying down and her mother in law sent her to fetch a bucket of
water which was poured on the now deceased. She said this was to no avail as
the now deceased was already dead lying facing down with blood oozing from the
injured head. Brenda said her father in law, who had arrived, confirmed the now
deceased was dead. She said moments later the accused arrived at the scene
wielding a matchet saying if the deceased was alive he had intended to cut his
hands and legs but the father in law told the accused that the now deceased was
dead. Brenda said her mother in law, father in law and the accused ferried the
now deceased's body in a wheel barrow to their homestead but the Village Head
advised them to take the deceased's body back to the scene of the crime for
police to attend - which they did.
According to Brenda, a member of the special constabulary
first attended the scene and the accused lied that he had hit the now deceased
with some stones on the head and even picked three (3) stones as the ones he
had used. She her mother in law coerced her to corroborate the accused's false
story saying she could not afford to have the accused incarcerated but Brenda
revealed the truth that the accused had used a hoe handle. She said the accused
only told the truth when other police details from Triangle arrived and
questioned the accused who capitulated and retrieved the bloodstained hoe
handle he had hidden in some hedge.
Under cross examination, Brenda did not at all change her
evidence.
Counsel for the accused sought to portray her as a bitter
widow who was hurt by the demise of her late husband and being caused to leave
the matrimonial home. She indeed confirmed that her in-laws unceremoniously,
and with undue haste, caused her to leave the matrimonial home. She also
confirmed that she was hurt by the loss of her husband and now has to fend for
the child alone. Brenda however insisted she simply narrated the truth of what
happened.
Brenda Mandizvidza denied that that her in-laws were
assaulted by the now deceased in the manner alleged but that the now deceased
just pushed away both of them and that none of her in-laws was in any danger or
injured. She dismissed as untrue that when the accused arrived and attacked the
now deceased her in-laws were under any attack as both had already gotten up.
She also dismissed as untrue that the accused even attempted to talk to the now
deceased upon his arrival but just attacked the now deceased who never fought
back or hit the accused. Brenda was clear that she did not witness the fatal
attack of the now deceased by the accused at the stream but only witnessed
three (3) blows delivered by the accused on the now deceased's back at the
cattle pen before the now deceased fled from the scene….,.
We now turn to the accused's evidence.
To a great extent, the accused maintained the version he
gave in Exhibit 2, his confirmed warned and cautioned statement, in his Defence
Outline and evidence in chief.
The accused insisted, in his evidence, that it is the now
deceased who attacked the accused first when the accused first approached the
now deceased at the cattle pen. The accused said after he hit the now deceased
with a hoe handle at the cattle pen he indeed chased after him when the now
deceased fled. The accused maintained that he was again assaulted by the now
deceased at the stream when he was pelted with stones on the stomach and leg. The
accused insisted that it was when the now deceased tried to pick a third stone
that the accused hit him with hoe handle, mistakenly, on the head when he had
directed the blow at the now deceased's back.
As already pointed out, in his confirmed warned and cautioned
statement, the accused said he hit the now deceased twice on the head with the
hoe handle, but in court, he insisted it was once. In a bid to explain this
disparity, the accused said he was caused by the police to exaggerate his
evidence in his warned and cautioned statement.
The accused flatly denied that he told Brenda Mandizvidza
that he had killed the now deceased or that he came back to the scene with a
machete threatening further harm.
It was during the cross examination by counsel for the
State that the accused's case collapsed like a deck of cards. The accused
virtually wilted under precise questioning and it became very clear he was an
untruthful witness.
The accused admitted that it was unnecessary for him to
carry with him a hoe handle when he approached the now deceased at the cattle
pen. He admitted not talking to the now deceased at the cattle pen before he
attacked the now deceased. The accused admitted that it is the now deceased who
in fact fled from the accused's attack at the cattle pen and that the accused
had no cause to chase after the now deceased as he did. In the most damning way,
the accused admitted that when he chased after the now deceased he wanted to
discipline him as the accused was now very angry. The accused admitted he had
no cause to chase after the now deceased for the 60-100m as the life of their
parents was not in danger at all. In fact, the accused said none of his parents
was unconscious. The accused said what motivated him to chase after the now
deceased was to exact revenge.
In relation to the fatal blow or blows, the accused
admitted that he used excessive force when he hit the now deceased's head which
fractured his skull and caused excessive bleeding. Further, the accused
admitted that there was real risk or possibility that the now deceased could
die from such an attack on the head with such high degree of force with a
weapon like a hoe handle. The accused admitted hiding the hoe handle, Exhibit 3,
and that he initially lied to the police that he had attacked the now deceased
with some stones.
The accused's version of events on how he attacked the now
deceased is clearly improbable. It is inconceivable that the accused would
advance towards the now deceased who was pelting him with stones at the stream.
The logical thing for the accused to have done was to run way from danger not
towards danger! No wonder why the accused admitted that he fatally assaulted
the now deceased on the head when the now deceased had fallen down. To his
credit, the accused later admitted that his conduct was driven by anger rather
than self defence or provocation. To quote the accused, he said;
“I cannot understand the rage I felt that day which caused
me to kill the deceased and I am hurting.”…,.
In terms of section 253(1) of the Criminal Law (Codification
and Reform) Act [Chapter 9:23], the defence of self-defence of a third party is
a complete defence for a charge of murder. In terms of section 239 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23], the defence of
provocation is a partial defence to the charge of murder.
In our assessment of the facts and the evidence none of the
two defences is available to the accused.
It cannot be said, by any stretch of imagination, that when
the accused chased after the now deceased, who was running away for his dear
life as the accused was wielding a hoe handle, the accused was acting in self defence
or the defence of the accused's parents. Even the accused admits to this fact.
The accused was simply angry about the dispute involving draught power and
wanted to discipline the now deceased. That is why he chased after the now
deceased to exert revenge. The accused admitted that he administered the fatal
blow when the now deceased had fallen down. This means when he fatally attacked
the now deceased he was not acting in self-defence or defence of his parents.
This explains why he initially lied to police that he had used stones to
assault the now deceased and went on to hide the hoe handle.
From the facts before us, there is nothing to suggest that
the accused was provoked to an extent that he lost control of his faculties or
self-control. What could have provoked him to that extent?
Nothing, in our view. Even counsel for the accused concedes
to these facts in his closing written submissions.
In our view, it is competent for the court to convict an
accused person on the evidence of a single credible witness.
See section 269 of the Criminal Procedure and Evidence Act [Chapter
9:07].
This court can completely rely on the evidence of Brenda
Mandizvidza. Indeed, there was no eyewitness to the fatal attack but it can be
inferred from the facts proved and admissions by the accused that the accused
had the requisite intention to commit the offence.
While it may be accepted that the accused may not have
intended to kill his brother, the now deceased, when he attacked him at the
stream; the manner in which the assault was perpetrated, with a lot of force,
using a hoe handle, fracturing the skull, leads to the inescapable conclusion
that the accused realised that there was a real risk or possibility that the
now deceased would die but nonetheless continued to engage in that conduct
oblivious of that risk or possibility. The accused may escape liability of
murder with actual intent but cannot escape conviction of murder with
constructive intent.
VERDICT: Guilty of murder with constructive intent as defined in section
47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
