The deceased, Mandanda Mudenda, of Njobola Village in Binga
District lost her life in unclear circumstances on 30 November 2014.
The accused, who happens to be the deceased's son, stands
accused of having caused the deceased's death through assault which allegedly
occurred on the evening of 25 November 2014. The assault was alleged to have
occurred about 50 metres away from the deceased's homestead.
The postmortem report (exhibit II) gave the possible cause
of death as intracranial haemorrhage and head injury caused by assault.
Exhibit I opined that the accused had a history of mental
challenge and that it was reasonably possible that at the time of the alleged
assault the accused was suffering from a mental disorder to the extent that, in
the psychiatrist's opinion, the accused must not be held criminally responsible
for his actions.
The State case was built around the viva voce evidence of
Draw Muleya and Frank Siambeta, the accused's two neighbours, who testified
that they both saw what happened on the night of the 25th of
November 2014. The witness' evidence was meant to confirm the deceased's
assault by the accused on the evening in question.
Contrary to the allegations of the State, the accused
denied ever assaulting the deceased. The accused alleged that on the evening in
question he heard the deceased screaming and rushed to the scene to investigate
the cause of the noise. When he got to the scene, the accused claimed that the
deceased, who was hopelessly drunk, revealed to him that she suspected she had
been given poisoned beer and that she had difficulties standing on her own. The
accused alleged he battled to raise her from the ground to no avail as on two
occasions she ended up falling down from his grip. He said he did this until the
two key State witnesses arrived close to the spot where the deceased was.
It is not in dispute that the accused had a history of
mental challenge in this case….,.
The thrust of the State case was that the deceased was
assaulted by the accused in the manner described in dramatic fashion by the
second witness, Frank Siambeta, who said that from about eight (8) metres he
and his colleague, Draw Muleya, saw the accused holding the deceased by the
throat or neck smashing her to the ground remarking that she should not play
with a buffalo or lion. The witness said the accused repeated this manner of
assault several times. When it was suggested to this witness that the accused
was not assaulting the deceased but was merely trying to assist her rise from
the ground, the witness retorted that this was not so as the accused was
habitually given to assaulting the deceased.
It is not in dispute that the first witness was
non-committal on the assault itself as described by the second witness. The first
witness, when asked by the court as to whether or not he had seen the accused
assaulting the deceased, was quite forthright. In his own words he retorted;
“I did not see the assault. I just saw him lifting her up
and down.”
The conclusion that the court has been urged upon to make
by the State counsel to accept is fraught with a number of challenges. The
acceptance of the evidence of Frank Siambeta suggests that the accused was
viciously assaulting the deceased. The accused countered this by suggesting
that if indeed he had assaulted the deceased there should have been extrinsic
evidence to support that in the form of visible wounds on the deceased or some
bleeding on her. The police officer who visited the deceased in hospital saw no
wounds. The nurses who attended the deceased appeared not to have seen these
wounds.
In fact, none of the witnesses testified to the existence
of any wounds.
The position must then be juxtaposed by the stance taken by
the accused bearing in mind that, at law, the accused has no onus to establish
his innocence but is merely required to cast doubt on the State case by giving
an explanation which is reasonably and possibly true. As DAVIES AJA succinctly
puts it in Rex v M 1946 AD 1023…,.;
“And I repeat, the court does not have to believe the defence
story; still less has it to believe it in all its details, it is sufficient if
it thinks that there is a reasonable possibility that it may be substantially
true.”
I may add and say that the only time that the court can
reject the story told by the accused is when the court is convinced that that
story is palpably false.
The accused stated that he was merely battling to raise her
mother, the deceased, from the ground but because of her drunken stupor he
found it hard to do so.
The reluctance or hesitance by the first witness to commit
himself on the assault would tend to lend credence to the accused's stance.
The accused explained that as he battled to raise his
mother he uttered words likening her mother's going for a beer drink to a
person voluntarily entering a place infected with either lions or buffalos. The
accused, through his counsel, argued that it was quite possible that his
utterances were noted out of context.
This argument is indeed persuasive in our view….,.
It does seem to us that when the two State witnesses saw the
accused trying to lift the deceased their minds were flooded by the past
history between the accused and the deceased and with that heavy prejudice they
wrongly concluded that the accused was assaulting the deceased. That bias is
understandable but should not be allowed to carry the day because of the
convincing counter-explanation given by the accused person.
In my view, nothing much tends on exhibits I and II. The
accused explained that when exhibit II was compiled, there was a possibility
that the doctor may have missed what he intended to convey by making reference
to the deceased's mother instead of his maternal aunt. It is quite possible
that a nurse who is not trained as an interpreter may have genuinely created
the unintended confusion to the innocent doctor.
Exhibit I must not confuse anyone.
The compilation of that exhibit was largely influenced by
the nature of the report the doctor/pathologist got. The pathologist had in
mind an assault and not a poisoned drink when he carried out his examination
report. The pathologist was not expected to carry out an examination on beer
poisoning because he was never made aware of that as a possibility of the cause
of the deceased's death.
It was still possible, even in these proceedings, to call
the pathologist to deal with the issue which was now being raised by the
accused; that the deceased had suggested she had drunk poisoned beer. In the
absence of that counter explanation it remains a possibility that the deceased
may have died as a result of having partaken of poisoned beer….,.
We all had an opportunity to hear and see the accused
giving his evidence in court. The question at the end of the day must be;
“Is the accused's explanation reasonably possibly true?”
In my view, the answer ought to be in the affirmative.
Consequently, the State has not discharged the required onus to justify a
conviction on the evidence presented to us.
It is not possible, in these circumstances, to even say
that the act of assault itself has been established beyond a reasonable doubt.
The accused is found not guilty and acquitted of
the murder charge.
