MUSAKWA
J: The accused is charged with contravening s 47 (1) of the Criminal
Law (Codification and Reform) Act [Cap9:23].
He pleaded not guilty.
The
facts leading to the charge are not in dispute. The accused and the
deceased were related. They both resided in Marovanhidze village in
Murehwa.
It
is not in dispute that late at night on 2 May 2011 the deceased went
to accused's home and knocked on the door. The accused's wife
enquired who it was and the deceased identified himself. The wife
dressed up and went to open the door. She then asked why the deceased
would visit at such late hours. It is not in dispute that the
deceased expressed dismay at the accused's wife's attitude. On
the other hand the wife gestured that her husband was inside.
Meanwhile
the accused had woken up and was standing behind the wife. Having
noted the gestures by the wife and the deceased's insistence that
he had paid her a visit the accused challenged the deceased in
respect of his conduct vis
a vis the
wife. The deceased was defiant and proceeded to enter the house
uninvited. He proceeded to punch the accused. As he punched the
accused for the second time, the latter retaliated. The accused
subsequently used a hoe handle they used as a wedge on the door to
assault the deceased. The deceased sustained injuries from which he
subsequently died.
The
accused person's defence was to the effect that when he challenged
the deceased as to why he was insisting on seeing his wife, the
deceased entered into the bedroom and pushed the accused before
hitting him on the chest with a fist. He acted in self defence and
was extremely provoked by the deceased's conduct. Thus he took a
hoe handle and beat the deceased on the buttocks and on the leg.
The
deceased later conceded defeat whereupon the accused went to summon
the village head. He learnt that the deceased had died after the
deceased's father said so. The accused then went to report the
matter at Murehwa Police Station.
The
accused's wife Marjorie Kasiyapfumbi testified that after
responding to the knock and asking the deceased why he was moving at
night the deceased advanced towards the door and asked if he could no
longer visit the family as he used to care for them. It was the
accused's wife who then invited him inside. However, the deceased
kicked the door as he entered and hurled obscenities at the accused.
He then proceeded to hold the accused by the collar. After the
accused had asked whether the deceased was after this witness he was
struck with a fist on the jaw. After the accused was struck with a
fist for the second time the two then grappled. She left to alert
others when the two were grappling.
When
she returned she found the deceased lying by the entrance. He was
still shouting obscenities. On the other hand the accused had a
swelling on the right side of the mouth. As the accused and the
deceased continued to exchange words the accused struck the deceased
once on the buttocks with the hoe handle. Later the accused dragged
the deceased outside. The wife denied having an affair with the
deceased.
Under
cross examination she agreed that the deceased was violent. Her own
conduct appears to have contributed to the conclusion that she was
having an affair with the deceased. For example, she admitted that
when she talked to the deceased she stood by the door and placed her
hand on the door frame in a way that obstructed the accused from
seeing outside. Even the gestures she made to the deceased were
suspicious enough. All this explains why the accused also wanted to
assault her. By her own admission the accused was angry.
This
witness's evidence was such that she could have testified for the
defence. Being the wife of the accused and having been at the centre
of the dispute one could not have expected her to give evidence that
was not favourable to the accused person.
Simon
Kamonera the deceased's father also testified. He was roused from
his sleep by the village head's son and received a report of the
assault. It was dark. He then set out to the scene of the incident.
He
found the accused and his wife. He did not recognize the accused. The
accused told him he had fought with the deceased and could have shown
him the injuries he sustained if there was light. He did not verify
the details of the dispute. This witness further stated that Marjorie
was not married. He had heard that she had children.
He
was shown the deceased who was covered with a blanket. The deceased
was cold and bleeding from the nose. He proceeded to inform the
deceased's brother before returning to guard the corpse. Police
officers later came in the morning and the accused was pointed out as
the culprit.
Under
cross-examination he denied that the deceased partook alcohol. One
could note that he was defensive. For example, in response to a
question on what he would do if an intruder invaded his home, he said
he would do nothing. Pressed on whether he could not defend himself
if attacked he said he would but without killing.
He
vacillated on Marjorie's marital status. He said she used to reside
in Mutoko and had been residing in their village for six months when
the incident took place. Asked on Marjorie's marital status he said
he had heard that she was married although he had not seen the
husband. This is because he had not been officially informed. He
conceded that he had initially resolved to dump the deceased's body
at the accused's home. He also confirmed that Marjorie had been
banished from the village.
The
evidence of Adam Sibange was admitted. The state then closed its
case.
In
his defence the accused stated that he earned a living from selling
boxes used for packaging tomatoes. He operated from Mbare. He
confirmed the testimony of Marjorie concerning the exchanges that
took place between her and the deceased after she responded to his
knock.
Even
though Marjorie must have been cheating on him, she tried to send the
deceased away by informing him that the accused was present. The
deceased was unperturbed. The accused knew the deceased and
challenged if that is what he did in his absence.
The
accused further explained that he had previously worked in the
village for two years before he married Marjorie. This was at
Tirivanhu's home which is about half a kilometer away from Silasi's
home.
Having
been attacked the accused fought back. When he realized that he was
being overpowered, he panicked as the deceased was by the door. He
looked around and saw a hoe handle which was used to secure the door.
He then struck the deceased from the mid extremities downwards. He
said he did not aim at the face. The deceased hurled insults at him.
After striking him the deceased capitulated and leaned against the
wall. The deceased further stated that the accused was lucky to win
otherwise he would have knifed him.
The
accused claimed that the deceased used severe force against him. As a
result he sustained a swollen cheek and leg. Eventually he pushed the
deceased outside. He left him by the door as he went to the headman's
home. He returned with the headman and the deceased's father. Since
the deceased's father said he was leaving body at the accused's
home, the accused decided to go and report the matter to the Police.
Under
cross-examination the accused did not dispute the contents of his
warned and cautioned statement although he claimed that his testimony
was the truth. He conceded that he overpowered the deceased who fell
down. He also conceded that the warned and cautioned statement made
no reference to the deceased possessing a knife.
The
two defences in issue are that of defence of self and provocation. In
terms of s 238 of the Criminal Law (Codification and Reform) Act [Cap
9:23]
provocation may be a partial defence where the accused lacks
intention or realization of risk in terms of s 47or he has the
intention or realization referred to in s 47 but because of
provocation has completely lost self-control in circumstances where a
reasonable person would have lost self-control.
On
this score the state urged the court disregard the defence of
provocation on the basis that a reasonable person would not have lost
self-control. On the other hand, counsel for the defence submitted
that the accused was extremely provoked by the deceased's conduct.
We
are satisfied that the accused person was provoked by the deceased
who was belligerent after he had made the suspicious nocturnal call
on the accused's wife. Even if a reasonable person might have lost
self-control, the accused did not. This is because apart form
challenging the deceased's visit, the accused did not react in any
other way. He did not fight the deceased or even shout at him. The
accused only reacted after he had been attacked by the deceased.
Loss
of self-control cannot just be invoked without elaboration. Even if
not explained, it must be exhibited in the conduct of the accused
person. It would appear that the provocation experienced by the
accused may have arisen from being attacked by the deceased as
opposed to the suspicious night visit. The accused appeared to have
been angered by the wife's gestures to the deceased after his fight
with the deceased. It is not easy to assess how a person may lose
self-control. In the present case the provocation seamlessly
dovetails with self-defence.
Whilst
mindful that the state bears the burden of proving its case beyond a
reasonable doubt, such proof is not necessarily adduced through viva
voce evidence. As in the present case, the confirmed warned and
cautioned statement is one aspect of evidence tendered against the
accused person. Defence counsel submitted that it should be noted
that the accused person was not legally represented when the
statement was recorded. Two aspects deflate this submission. Firstly,
the statement was confirmed by a magistrate. That procedure, if
judicially conducted normally addresses concerns about impropriety in
the recording of the statement. On that score, it is inadequate for
counsel to submit that the statement was recorded from an
unrepresented accused. Secondly, a challenge to the statement could
have been mounted at the time it was tendered by the state. In this
respect see s 256 of the Criminal Procedure and Evidence Act.
Regarding
self defence, whilst submitting that it is a partial defence, the
state urged the court to return a verdict of murder. On the other
hand, the defence, just as it has done in respect of the defence of
provocation, sought an acquittal. Regarding defense of person s 253
provides that-
“Subject
to this Part, the fact that a person accused of a crime was defending
himself or herself or another person against an unlawful attack when
he or she did or omitted to do anything which is an essential element
of the crime shall be a complete defence to the charge if
(a)
when he or she did or omitted to do the thing, the unlawful attack
had commenced or was imminent or he or she believed on reasonable
grounds that the unlawful attack had commenced or was imminent, and
(b)
his or her conduct was necessary to avert the unlawful attack and he
or she could not otherwise escape from or avert the attack or he or
she, believed on reasonable grounds that his or her conduct was
necessary to avert the unlawful attack and that he or she could not
otherwise escape from or avert the attack, and
(c)
the means he or she used to avert the unlawful attack were reasonable
in all the
circumstances;
and
(d)
any harm or injury caused by his or her conduct
(i)
was caused to the attacker and not to any innocent third party; and
(ii)
was not grossly disproportionate to that liable to be caused by the
unlawful attack.”
Applying
these requirements, it is self-evident that the deceased was the
aggressor. Therefore an unlawful attack had commenced. The accused
was entitled to defend himself against the attack. It is the means
used by the accused to avert the attack that poses a problem. By his
own admission as evidenced by the confirmed warned and cautioned
statement that was produced as exhibit 1, the accused overpowered the
deceased. The relevant part of the statement reads as follows-
“As
we were fighting I overpowered him and he fell down. I then jumped
and stamped him (sic)
on his ribs several times. I then took a hoe handle and assaulted him
all over the body with it. I then noticed that he was unable to stand
up on his own. That is when I dragged him out of the house and left
him lying on the ground.”
The
post-mortem report noted the following injuries-
“-fracture
left proximal femur
-Abrasions
on right shoulder, both forearms and buttocks
-
fractured left 5th
and 6th
ribs, fractured right 4th
rib
-swollen
right upper lip, loose jaw
-bleeding
from the nose.”
The
cause of death was given as multiple organ damage arising from
assault.
The
use of unreasonable force in legitimately defending oneself or
another person from unlawful attack incurs liability for culpable
homicide if it results in the death of the attacker. Section 254 of
the Code provides that-
“If
a person accused of murder was defending himself or herself or
another person against an unlawful attack when he or she did or
omitted to do anything that is an essential element of the crime, he
or she shall be guilty of culpable homicide if all the requirements
for defence of person specified in section two
hundred and fifty-three are
satisfied in the case except that the means he or she used to avert
the unlawful attack were not reasonable in all the circumstances.”
Once
the accused person managed to overpower the deceased he was no longer
in danger. He was not expected to continue attacking the deceased
person especially using a weapon. The means he used were not
proportionate to the attack that he had experienced. Therefore the
means he used were unreasonable in the circumstances. You cannot
continue to assault a person who is down thereby inflicting fatal
injuries and claim that you were defending yourself from an unlawful
attack.
Accordingly,
the accused person is found guilty of culpable homicide in terms of s
49 of the Code.
Civil
Division of the Attorney General's Office,
for the State
V.
Nyemba & Associates,
accused's legal practitioners
