Criminal
Trial
On
6 April 2008 the accused who was 17 years old and in the company of
his cousin the late Trust Macharangwanda approached the deceased and
accused her of practicing witchcraft and being responsible for death
and illnesses in the family.
The
deceased, who was 69 years old, protested her innocence and suggested
that the accusations required the presence of family elders. The
result was a combined assault initiated by Trust and joined in by the
accused. The two randomly assaulted the deceased using two sticks
leading to the subsequent death of the deceased.
The
post mortem report compiled by Dr David Tarumbwa recorded that there
were multiple bruises and abrasions on the deceased's body. The
doctor also observed and recorded the deceased had sustained a
fractured occipital skull which was depressed with massive
haemorrhage. The doctor concluded that the cause of the deceased's
death was the head injury caused by the assault perpetrated on her.
The
State alleged the accused was partly to blame because of his
involvement in the tragic assault and in doing so they relied on the
doctrine of common purpose.
Whilst
agreeing to having taken part in assaulting the deceased the accused
raised the defence of compulsion which was basically an averment by
the accused that he had been compelled or forced to commit the
assault by the late Trust who was older than him and assumed control
of the proceedings leading to the assault and subsequent death of the
deceased.
The
basic requirements of the defence of compulsion has been eloquently
stated and unanimously agreed by both counsel and it is not my
intention to re-state it. Suffice it to say that it basically
requires that for it to succeed evidence must abound to demonstrate
in very clear terms that the crime in issue was induced by real and
substantial threat and not cosmetic threats. Committing the crime in
issue must have been the only avenue open to the accused in the given
circumstances. The evidence must also show very clearly that the
accused could not reasonably have been expected to have avoided the
crime.
Authorities
are in agreement that this defence will not avail itself to someone
who voluntarily joins in advancing a criminal objective.
Having
carefully weighed the requirements of the defence of compulsion both
the State and the defence concluded the defence of compulsion was not
sustainable in this case. We entirely agree with counsels' reading
of the evidence presented and the conclusion arrived at. The issue of
compulsion is accordingly put to rest.
The
viva voce evidence of Esinath Mwareka took us through how the assault
itself was carried out. The accused also testified on the assault
itself.
We
are satisfied that despite some unconvincing aspects of her testimony
like her indifference in describing to the court's satisfaction the
type of switch used by the accused, Esinath's version of events
leading to the death of the deceased was quite credible. Her version
was more revealing as opposed to the version given by the accused
person which was characterised by rough edges.
We
found it to have been quite revealing and significant that the
accused's version of what transpired as explained by him in court
almost 3 years after the event was at variance with his summary of
events given on 26 April 2008 at Mukurasine Police Station and
subsequently confirmed at Chiredzi Court on 26 June 2008. We are
satisfied his explanation in Court was calculated to mislead the
Court and therefore we had no hesitation in rejecting it.
From
the agreed evidence, the prosecution advocated for the accused to be
found guilty of the crime of murder with construction intent whilst
the defence passionately argued that the evidence suggested no more
than the commission of the crime of culpable homicide.
From
a practical point there is a very thin line between murder with
construction intent and the offence of culpable homicide but the
distinction must and has always been maintained.
For
murder with constructive intent to be returned as a verdict the issue
which must occupy the mind of the Court is whether as a matter of
inference deriving from the set of facts accepted by the Court it can
be said the accused foresaw that his conduct would result in the
death of the deceased. An accused can only be convicted of murder if
the only reasonable inference that can be drawn from the facts proved
is that the accused had legal intention to do so. The test becomes a
subjective one. The Court is enjoined to take into account factual
evidence which bears upon and could have affected the accused's
perception, powers of judgment and state of mind deriving from such
factors like level of accused's intelligence, age of the accused
person, personality etc - the list is endless.
If
the Court concludes that the accused could not have foreseen the
possibility of death but that he should have foreseen it (relying on
reasonable man's test) and that a reasonable man would have guarded
against it, the correct verdict must be culpable homicide.
It
must be emphasised that in borderline cases the Court must lean in
favour of the verdict of culpable homicide and this approach appears
to be influenced by the time honoured and well cherished principle of
our approach that the accused as opposed to the State must generally
be granted the benefit of doubt.
It
is never an easy walk.
In
the instant case the Court has had the benefit of seeing one of the
sticks used. We have assessed the accused's level of intelligence,
age at the time of the committing of the offence and the fact that
there is overwhelming evidence that the accused was not himself in
control of the situation that led to the accused's tragic assault.
We
are in agreement that it cannot be concluded with a degree of
certainty that the accused could have foreseen that his involvement
in the assault of the deceased would ultimately lead to the
deceased's death.
However
it is our firm view that although the accused did not foresee death
as a result of his conduct, a reasonable man placed in the shoes of
the accused person would have foreseen that subjecting a sixty nine
year old woman to the assault with the sticks or switches described
to the Court would have resulted in her death and that the accused
should have guarded against it. He did not do so and we are enjoined
to return a verdict of guilty of culpable homicide.
Verdict
– Not guilty of murder but guilty of Culpable Homicide.
Sentence
There
is no specific formula prescribed to the sentencing approach. It is a
question of a value judgment borrowing heavily from a given set of
facts as coloured by both the mitigating and aggravating factors.
These must be carefully balanced to enable the Court to arrive at
what it perceives to be an appropriate sentence.
In
sentencing the accused the court accepts that he is a youthful first
offender, 17 years of age at the time of the commission of the
offence but now is 19 years old.
The
accused did not himself mastermind the assault in question and was
not in control of the proceedings leading to the assault of the
deceased. He is being punished for joining in the assault that led to
the death of the deceased.
It
is also highly mitigatory that he took the initiative to dissuade his
late cousin from continuing with the deceased's assault.
The
accused's conduct led to the death of a close relative and we have
no doubt this will probably haunt him for the rest of his life. That
is some form of punishment.
We
accept in aggravation that the accused demonstrated no respect at all
by assaulting his aunt who was 69 years old at the time and almost 52
years older than him.
The
conduct exhibited by the accused was barbaric to say the least. The
elders have invested so much in the youth and the youth are expected
to demonstrate a reciprocal obligation by rendering maximum respect.
It
is not the responsibility of young persons like the accused to mete
out punishments on their parents but the inverse is true.
Whilst
accepting the accused is a youthful first offender, our concern as a
court is that it is these youth who are at the centre of committing
these violent crimes in our society. The message must go loud and
clear that this Court will not fold its hands and allow disorderly
conduct out there.
The
sentence imposed must send the message to other like minded youth and
at the same time assist in the rehabilitation of the accused person.
It
must be stated and re-emphasized that it is animals which quarrel and
fight but people must find civilised methods of resolving their
differences.
The
conduct of some of our traditional healers and self proclaimed
profits has not escaped our attention. So much confusion and hatred
are sometimes as a result of the conduct of such traditional healers.
The
issues which led to the death of the deceased should have been
handled in a better way than the conduct resorted to by the accused
person.
The
accused is sentenced as follows:-
8
years imprisonment, 2 years of which is suspended for 5 years on
condition the accused does not within this period commit any offence
involving violence upon the person of another and for which upon
conviction he will be sentenced to a term of imprisonment without the
option of a fine.
Attorney
General's Office,
for the State
Muzenda
& Partners,
for defence counsel
