This is an application for the discharge of the accused at
the close of the State case in terms of section 198(3) of the Criminal
Procedure and Evidence Act [Chapter 9:07].
This court is enjoined to return a verdict of not guilty,
if, at the close of the State case, there is no evidence to show that the
accused committed the offence charged.
There are now a plethora of cases in which our courts have
interpreted the provisions of section 198(3) of the Criminal Procedure and
Evidence Act [Chapter 9:07]. These include, inter alia;
(a) Where there is no evidence to prove an essential
element of the offence. See Attorney General v Bvuma 1987 (2) ZLR 96 (S); or
(b) Where there is no evidence upon which a reasonable
court acting carefully might properly convict. See Attorney General v Mzizi
1991 (2) ZLR 32 (S); or
(c) Where the evidence adduced by the State is so
manifestly unreliable or has been discredited in cross examination that no
reasonable court could safely act on or rely upon it. See Attorney General v
Tarwirei 1997 (1) ZLR 575 (S).
See also S v
Kachipore 1998 (2) ZLR 271 (S).
The accused is facing a charge of murder as defined in section
47(1) of the Criminal Code [Chapter 9:23]. The charge is that on 7 December
2013, at Gapare Village, Chief Serima in Chatsworth, the accused unlawfully
caused the death of a baby belonging to Sheila Tavarwisa by strangling the baby
intending to kill the baby or realising that there was a real risk or
possibility that her conduct may cause death and continued to engage in that
conduct despite the risk or possibility.
The accused, then aged 53 years old, is the biological
mother of Sheila Tavarwisa. Sheila Tavarwisa is the mother of the now deceased
who was a newly born child without having an independent circulation at the
time of death. On 7 December 2013, Sheila Tavarwisa, the deceased's mother,
experienced labour pains. It is alleged she suggested to the accused that they
go to Matizha Clinic but the accused opted to take her to their aunt Loice
Makore's homestead. Sheila Tavarwisa gave birth, on the way to Loice Makore's
homestead, to a healthy baby who made the first cry. The accused is alleged to
have purported to wrap the newly born baby but in the process intentionally
strangled the baby to death and buried the baby in a hole which she covered
with a stone and soil. A report was made to police and the accused was
subsequently arrested.
In her Defence Outline, the accused said she does not know
what caused the death of the baby but believes the newly born baby may not have
survived in view of the circumstances of its birth; that is being born in the
forest, on dry ground, and in bad weather. Further, its umbilical cord remained
attached to its mother for a prolonged time. The accused said Sheila Tavarwisa,
after giving birth, fled to Harare where she was arrested and may as well be
falsely incriminating the accused in order to save her skin.
According to Dr Zimbwa, who examined the newly born baby's
body and compiled the post mortem report, Exhibit 1, he made the following
findings;
1. The neck of the newly born child was loose and
hypermobile.
2. The umbilical cord was not tied and substantial blood
was noted on the placenta.
3. The doctor concluded that the cause of death of the
newly born baby was haemorrhage shock arising from the bleeding from the
placenta.
The accused, in Exhibit 2, her confirmed warned and
cautioned statement, denied strangling the newly born baby but admitted to have
buried the baby in the bush after the baby died.
The State led evidence from the mother of the newly born
baby, Sheila Tavarwisa, now aged 30 years, and Dr. Zimbwa, who compiled the
post mortem report. The other evidence of other State witness was admitted in
terms section 314 of Criminal Procedure & Evidence Act [Chapter 9:07].
The defence proceeded to apply for discharge of the accused
at the close of the prosecution case.
In our view, it is not necessary to analyse the evidence
placed before us as the State, in its response, conceded to the application. In
our view, that concession is professional, well-informed, and properly made. We
commend counsel for the State for such professionalism.
No useful purposes would be served by flogging a dead horse
as it were.
The doctor's evidence is clear and unambiguous as regards
the cause of the death of the newly born baby. The doctor pointed out that the
loose or hypermobile neck cannot possibly be the cause of death of the child as
the neck of a newly born child can always be flexible as the neck muscle would
not be strong. Thus, according to the
doctor, this was normal. What is critical is the finding by the doctor that the
cause of death was certainly haemorrhagic shock and placenta bleeding. The
failure to cut the umbilical cord immediately after birth resulted in the baby
bleeding into the placenta. No criminal liability therefore can be attached to
the accused for that. Further, there is no other evidence supporting the
conviction of the accused on any other permissible verdict.
It is these factors which correctly informed the State's
concession.
Consequently, the accused is discharged at the close of the
case for the prosecution and is therefore entitled to a verdict of not guilty
in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter
9:07].
VERDICT: Not guilty and acquitted.
