The
accused, who is a qualified teacher who was based at Nyamapanda Primary School,
was in love with Abigail George. Abigail George was the mother of the three
year old Nigel Josi. She had parted ways with the father of the child although
the latter was seeking to reconcile with her...,.
On
the 27th of October 2008 the accused visited Abigail George, who,
from her testimony, was no longer interested in the affair. Later in the
evening of the same day Abigail George left for the home of her friend, Brenda
Chaparira. According to her, she told the accused that she was going to fetch
water; the accused
is
said to have suggested that she lock the door from outside. She said she told
the accused that she was not returning to put up for the night. On the other
hand, the accused told the court that when he realized that he had been locked
inside he questioned Abigail George who told him that she was doing so in case
her former husband came and found him there.
Whatever
could have been the more plausible explanation, the accused spent the night
locked in Abigail George's house. Early in the morning on the following day
Abigail George returned home. According to her she left the deceased behind
because he was asleep. On the other hand, the accused said she returned
carrying the deceased on her back. Brenda Chaparira said when she told Abigail
George that it was time to wake up she returned shortly afterwards when the
deceased started to cry. She does not know whether Abigail George then took the
deceased with her as she was then asleep. However, it was Brenda Chaparira's
evidence that when she eventually woke up the deceased was not in the room.
It
was also Abigail George's evidence, under cross-examination, that on the
previous day she had carried the deceased on her back as he was not feeling
well. She was also asked if she had checked on the deceased's health before she
left for her place. She simply stated that she left the deceased whilst he was
asleep. There was no mention that he had cried and that she had returned to
attend to him.
When
Abigail George unlocked the door to her house she went in and greeted the
accused. The accused returned her greeting, and she went out to brush her
teeth. After she returned from brushing her teeth the accused told Abigail
George that he was going to his residence at the school. That is when Abigail
George said she told him never to return again. This upset the accused as he
then demanded his clothes he had brought for laundry. In addition, the accused
demanded what he had given to Abigail George during the good old days, including
cash he claimed to have loaned to her. Abigail George retorted that she had
never placed her hand in the accused's pocket for the money that he was now
demanding.
At
this stage, the sequence of events diverges.
According
to Abigail George, when the accused demanded his things he packed them in his
bag and went outside. She, in turn, followed in order to see him off, and
locked the door behind her. As the two faced each other, the accused was now
holding an axe, and told her that he could damage her for being arrogant. The
next instant she only saw darkness. When people later came she told them that
she had been injured by the accused but was unable to talk much. She was
admitted at Kotwa Hospital until the 23rd of November 2008.
On
the other hand, the accused's version is that when he demanded his things,
including the cash, he then took Abigail George's jacket and sneakers. He told
Abigail George that he would return the items when she paid back his money. As
he walked away, Abigail George tried to snatch the jacket and sneakers and
ended up biting him on his left thumb. In a bid to extricate himself, he
stumbled on the axe and used his right hand to strike Abigail George. Abigail
George knelt down as a result of the blow. As he aimed another blow she dodged,
and he struck the deceased on the head.
The
deceased died soon thereafter.
Realizing
the gravity of the situation, the accused slashed his neck with a knife he took
from Abigail George's house in an attempt to kill himself. He then threw the
knife, and axe, on the roof of the house.
The
accused claims he sought help from Abigail George's neighbour but to no avail.
He then attempted to carry Abigail George to her aunt's place but failed as he
was getting weak from the self-inflicted wound. He then went away to his
residence.
Upon
being questioned by workmates he told them that he had been attacked by Fungai
Josi – Abigail George's former husband. However, he later came out clean when
police recorded a warned and cautioned statement from him.
The
State urged this court to find the accused guilty of contravening section
47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Counsel for the State also submitted that it should be accepted that Abigail
George was not carrying the deceased on her back. This is because no material
with which she carried the deceased on her back was found at the scene.
Consequently, he further argued, that it can only mean that the accused killed
the deceased in order to suppress his attack on the mother. Accordingly, it can
only mean that the accused deliberately killed the deceased. In fact, counsel
for the State submitted that the murder was committed in cold blood.
On
the other hand, counsel for the accused submitted that the court must make a
finding that the deceased was killed whilst on his mother's back. In other
words, he urged the court to accept the accused's version of the events leading
to the attack. Although conceding that the means used by the accused to ward
off the attack by Abigail George was immoderate, counsel for the accused
submitted that the court should return a verdict of contravening section 49 of
the Criminal Law (Codification and Reform) Act [Chapter 9:23] (culpable
homicide).
By
his own admission, the accused was aware that Abigail George was carrying the
deceased on her back. Having first struck her on the left eye, leading to
Abigail George going down, he further aimed another blow which found its mark
on the deceased. He must have realized that in aiming the axe at Abigail George
there was danger in causing death to the deceased but he persisted with such
conduct despite the risk.
In
the case of S v Mpala 1986 (2) ZLR 93 (SC) and S v Ncube 1983 (2) ZLR 111 (SC)
which involved the infliction of harm on an unintended victim it was held that
since the aberratio ictus rule had been discarded in such cases as the present
matter the court must look at the accused's intention in relation to the
unintended victim ,on the basis of foreseeability, in order to determine
whether he subjectively foresaw the possibility that the deceased might be
killed.
In
his commentary on the Criminal Law (Codification and Reform) Act 2004,
PROFESSOR G.FELTOE states that all crimes – except those providing for strict
liability, require proof of some mental ingredient. The two main mental states
are intention and negligence. Under the common law, intention was subdivided
into actual intention and legal intention. Thus, legal intention has been
modified to mean that a person has the necessary intention if he or she engages
in conduct, and realizes that there is a real risk or possibility (not merely a
remote risk or possibility) that such conduct might cause the consequence, and,
having realized this, he or she continued to engage in the conduct, reckless as
to whether or not the consequence ensued.
We
are therefore satisfied that the accused had the requisite intent vis-a-vis the
deceased when he aimed a blow at Abigail George, missed, and fatally struck the
deceased.
Accordingly, he is found guilty of contravening
section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter
9:23] (which, for the avoidance of doubt, is equivalent to murder with
constructive intent).
