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HH317-14 - THE STATE vs JANE CHENZIRA

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Murder-viz section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Procedural Law-viz rules of evidence re key witness.
Procedural Law-viz rules of evidence re admissions iro section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re warned and cautioned statement iro confirmed warned and cautioned statement.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Procedural Law-viz rules of evidence re accomplice witness iro section 276 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re findings of fact iro witness testimony.
Procedural Law-viz rules of evidence re expert evidence iro post mortem report.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz rules of evidence re incapacitated witness iro mentally challenged witness.
Murder-viz concealing birth of a child.
Murder-viz concealing birth of a child re section 106 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Sentencing-viz concealing birth of a child.
Sentencing-viz sentencing approach re first offenders.

Murder re: Concealing Birth of a Child and Infanticide

On the night of 29 April 2013, Shingairai Shoko, the mother of the deceased, went into labour from her pregnancy which she had concealed from her mother, the accused. Shingairai Shoko awoke the accused whom she advised she was experiencing serious abdominal pains. The accused accompanied her to some field within the yard, where, much to the chagrin of the accused, the witness delivered a baby under the guise of relieving herself. The witness was barely a metre or so from the spot where the accused was also relieving herself.

The newly delivered baby died in mysterious circumstances, but the investigations that followed pointed to the accused as the person who had authored the demise of the deceased leading to the charge of murder, as defined in the Act, being preferred against the accused person.

The accused denied the charge, and, in her Defence Outline, pointed to her daughter, Shingairai Shoko, as the person who cut short the deceased's life soon after delivery.

The State case centred around the evidence of Shingairai Shoko as the star witness, who gave evidence together with Robert Togara, a member of the neighbourhood watch committee charged with the duties of rural policing in Chikofa Village under Headman Chipindu in Chivi District where the alleged murder of the deceased took place….,. Further, the post-mortem report (exhibit 1), and the accused's confirmed warned and cautioned statement (exhibit 2) were also produced to buttress the State case.

In denying the allegations, the accused admitted to have authored the confirmed warned and cautioned statement, which, on the face of it, was highly incriminatory of her but in court disowned its contents alleging it did not represent the truth. She maintained in her Defence Outline that she was motivated to assume responsibility over the death of the deceased in a hopeless attempt to cover up for Shingairai Shoko who was the one who had killed the deceased.

Onus re: Evidential Standard and Burden of Proof iro Approach and the Presumption of Innocence

In dealing with this case, I am mindful of the often quoted words of GREENBERG J by WATERMEYER AJA in the much celebrated case of R v Dofford 1937 AD 772..., where the learned judge remarked as follows:

“…, no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt is false. If there is any reasonable possibility of his explanation being true, then he is entitled to an acquittal.”

It is with these elementary guiding principles that I will make an attempt to deal with the evidence that was presented in this case in our effort to answer the simple issue that we had to grapple with for the three days which we devoted to this case – who killed the deceased?...,.

Shingairai Shoko's story began with her going into labour on the night of 29 April 2013 and her subsequent delivery of the deceased that same night. It was her undisputed evidence that when she delivered, the deceased was alive, a position which was well supported by the accused.

There was a divergent of explanations as to what happened when the witness delivered her baby. The witness's evidence was that immediately after delivery, the accused sent her to collect a sack but upon her return to the place of birth she found the deceased no longer breathing. She pointed a finger at her mother as having killed the deceased.

The witness further testified that once she gave the accused the sack she went home to sleep leaving the accused to deal with the burial of the deceased, and that she did not know where the deceased's remains were interred.

As a court, we had extreme difficulties in following this witness's evidence, particularly when she professed ignorance of where the deceased's remains were buried and her attempt to shift the exclusive knowledge of that spot to her mother, the accused. This position was refuted by Robert Togara, whose credibility the court found to have been beyond reproach. It was equally significant that initially the witness advised the court that she did not know the name of the man who was responsible for her pregnancy. It was only when she appeared in court on the second occasion that she suddenly remembered that Lord, or Lot, was the person who impregnated her. It is most unusual that a woman would fail to recognise the person responsible for her pregnancy no matter how her level of intellect is. When the trial unfolded, it dawned on us that, in fact, the deceased was not the witness's first pregnancy but the second one. This inevitably compounded the impact of Shingairai Shoko's testimony.

When confronted by Robert Togara and Shirley Madoro, two members of the neighbourhood watch committee, about what had become of her pregnancy, two or so days after she had given birth to the deceased, her immediate response was to lie to them that she had had a miscarriage in that the birth had manifested itself in the excretion of blood and nothing more. It was only when she could not present evidence of the discharged blood that she shifted goal posts and disclosed that she had given birth to a live baby but that the accused had killed this baby by strangulation.

The alleged strangulation of the deceased became central to the State case because the State case was built around that theory. Even the accused's own undisputed confirmed warned and cautioned statement spoke to the death of the deceased by strangulation.

The difficulty with the position of the State is that it did not accord well with the findings of the post-mortem report…, which gave the cause of death as having been due to head injury.

Of all the witnesses who gave evidence in this case, it was only the accused who gave an explanation that possibly explains the head injury to the deceased.

Her explanation was that the key state witness, Shingairai Shoko, who had all along denied having been pregnant, went into labour under the guise of relieving herself and dropped the fragile deceased whilst in a crouching position with no preparation for birth having been put in place because of Shingairai Shoko's secretive approach to her pregnancy. She said when the deceased was born she fell on a rough surface and she heard her cry once. She further stated that as Shingairai Shoko attempted to lift the deceased she smashed it on the unfriendly earth surface; she could not tell whether this act was a deliberate or accidental one. This explanation would be consistent with the post mortem report and also runs contrary to the method of killing the deceased which is contained in the accused's confirmed warned and cautioned statement.

The accused explained the circumstances surrounding her offer of two goats to the two members of the neighbourhood watch committee. She explained that although she admitted the offence to them all she wanted to do was to protect Shingairai Shoko.

The accused's explanation might be false but it is reasonably true.

We are all agreed that other than the unsatisfactory evidence of the key witness for the State, Shingairai Shoko, this witness is mentally challenged. We all observed this and even her biological mother, the accused, testified to this effect and said it was precisely because of this that she was advised by teachers not to waste her resources sending her to school.

Faced with the evidence of such a witness, being the star witness for the State, who is also an accomplice, we found it unsafe to convict the accused on the main charge of murder….,.

In conclusion, having considered the case, the court is of the unanimous view that the evidence has not established the accused's guilt beyond a reasonable doubt.

She is entitled to an acquittal on the main charge….,.

However, we reckon that in deciding to secretly bury the remains of the deceased, the accused collided with another statutory obligation, viz section 106 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

After the mysterious death of the deceased, the accused and her daughter confirmed to secretly burying the deceased's remains in violation of the law….,.

The accused is found not guilty and acquitted of murder but found guilty of contravening section of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which is a competent verdict to the charge of murder.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule


The State case was also supported by the evidence of Shirly Madoro, Regina Mabota, Felix Hondoma and Dr Chagonda whose evidence was allowed into the record of proceedings by way of admissions as provided for by section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Accomplice Witness, Suspect Witness, Executive Communication Between Co-Conspirators & Immunity from Prosecution

The evidence of Shingairai Shoko was preceded by the warning in terms of section 276 of the Criminal Procedure and Evidence Act [Chapter 9:07] because of her being an accomplice to the offence charged against the accused.

It followed that her evidence had to be looked at with heightened caution to avoid possible deception.

Bribery, Corruption and Corruptly Concealing a Transaction from a Principal

In passing, we wish to spare a page on the conduct of Robert Togara and Shirley Madoro, the two members of the Neighbourhood Watch Committee charged with, among other things, policing Chikofa Village, under Headman Chipindu, Chivi area.

It is refreshing to note that in a country which is literally clueless as to how effectively it can stamp out corruption in almost every sector, we have simple citizens of this country who are able to resist the temptation to be corrupted as they engaged in their policing duties. These were offered two goats by the accused in order to put a lid to the crime which the accused was facing. The two remained steadfast in the execution of their duties. Such conduct cannot go unnoticed.

It was also the vigilance of Robert Togara which exposed this crime. The enthusiasm of this officer in the execution of his duties is commendable and one hopes that the authorities that be will also appreciate his potential and give it due recognition.

Sentencing re: Murder iro Concealing Birth of a Child and Infanticide

Sentence

In considering an appropriate sentence, we have been guided by the following factors; the accused is a first offender with unusually heavy family responsibilities thrust upon her.

She is not only looking after her mentally challenged daughter, Shingairai Shoko, but is also looking after Shingairai Shoko's child from an earlier abortive marriage. She has been in custody ever since these allegations arose on 3 May 2013. The accused strikes us as a frail woman who requires to be treated with extreme mercy.

In aggravation, we note with concern the accused's inclination towards crime. She attempted to bribe the two members of the Neighbourhood Watch Committee with two goats in order to stop them from carrying out their duties. The accused is supposed to be Shingairai Shoko's mentor but she corrupted the girl's thinking by conspiring with her to depose of the deceased in the manner they did.

The accused is sentenced as follows;

Six months imprisonment of which three months imprisonment is suspended for a period of 5 years on the condition that within that period the accused person does not commit any offence involving concealment of birth of a child for which upon conviction she will be sentenced to imprisonment without the option of a fine.

The remaining three months imprisonment is wholly suspended on the condition that the accused completes 105 hours of community service at Chamatutu Primary School in Chikofa Village, Chivi. The community service is to be performed every Monday to Friday, other than a Public Holiday, from 0800 hours to 1300 hours and then from1400 hours to 1600 hours. It is to be performed to the satisfaction of the person in charge who may, on any good cause shown, grant leave of absence on any number of days. Such leave of absence shall not form part of the community service performed. To start on 23 June 2014.

BERE J: On the night of 29 April 2013 Shingairai Shoko the mother of the deceased went into labour from her pregnancy which she had concealed from her mother, the accused.

Shingairai awoke the accused whom she advised she was experiencing serious abdominal pains. The accused accompanied her to some field within the yard where much to the chagrin of the accused the witness delivered a baby under the guise of relieving herself. The witness was barely a metre or so from the spot where the accused was also relieving herself.

The newly delivered baby died in mysterious circumstances but the investigations that followed pointed to the accused as the person who had authored the demise of the deceased leading to the charge of murder as defined in the Act being preferred against the accused person.

The accused denied the charge and in her defence outline pointed to her daughter Shingairai as the person who cut short the deceased's life soon after delivery.

The State case centred around the evidence of Shingairai Shoko as the star witness, who gave evidence together with Robert Togara, a member of the neighbourhood watch committee charged with the duties of rural policing in Chikofa Village under headman Chipindu in Chivi District where the alleged murder of the deceased took place.

The State case was also supported by the evidence of Shirly Madoro, Regina Mabota, Felix Hondoma and Dr Chagonda whose evidence was allowed into the record of proceedings by way of admissions as provided for by s 314 of the Criminal Procedure and Evidence Act [Cap 9:07].

Further, the post-mortem report (exhibit 1), and the accused's confirmed warned and cautioned statement (Exhibit 2) were also produced to buttress the State case.

In denying the allegations, the accused admitted to have authored the confirmed warned and cautioned statement which on the face of it was highly incriminatory of her but in court disowned its contents alleging it did not represent the truth. She maintained in her defence outline that she was motivated to assume responsibility over the death of the deceased in a hopeless attempt to cover up for Shingairai who was the one who had killed the deceased.

In dealing with this case I am mindful of the often quoted words of GREENBERG J by WATERMEYER AJA in the much celebrated case of R v Dofford[1]where the learned judge remarked as follows:

“----- no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, be improbable the court is not entitled to convict unless it is satisfied, not only that the explanation s improbable, but that beyond any reasonable doubt is false. If there is any reasonable possibility of his explanation being true, then he is entitled to an acquittal. 

            It is with these elementary guiding principles that I will make an attempt to deal with the evidence that was presented in this case in our effort to answer the simple issue that we had to grapple with for the three days which we devoted to this case – who killed the deceased?

            The evidence of Shingairai Shoko was preceded by the warning in terms of s 276 of the Act[2] because of her being an accomplice to the offence charged against the accused. It followed that her evidence had to be looked at with heightened caution to avoid possible deception.

            Shingairai's story began with her going into labour on the night of 29 April 2013 and her subsequent delivery of the deceased that same night. It was her undisputed evidence that when she delivered the deceased was alive a position which was well supported by the accused.

            There was a divergent of explanations as to what happened when the witness delivered her baby. The witness's evidence was that immediately after delivery the accused sent her to collect a sack but upon her return to the place of birth she found the deceased no longer breathing. She pointed a finger at her mother as having killed the deceased.

            The witness further testified that once she gave the accused the sack she went home to sleep leaving the accused to deal with the burial of the deceased and that she did not know where the deceased's remains were interred.

            As a court we had extreme difficulties in following this witness's evidence particularly when she professed ignorance of where the deceased's remains were buried and her attempt to shift the exclusive knowledge of that spot to her mother, the accused. This position was refuted by Robert Togara whose credibility the court found to have been beyond reproach.

It was equally significant that initially the witness advised the court that she did not know the name of the man who was responsible for her pregnancy. It was only when she appeared in court on the second occasion that she suddenly remembered that Lord or Lot was the person who impregnated her. It is most unusual that a woman would fail to recognise the person responsible for her pregnancy no matter how her level of intellect is.

When the trial unfolded, it downed on us that in fact the deceased was not the witness's first pregnancy but the second one. This inevitably compounded the impact of Shingairai's testimony.

            When confronted by Togara and Shirley, two members of the neighbourhood watch committee about what had become of her pregnancy two or so days after she had given birth to the deceased, her immediate response was to lie to them that she had had a miscarriage in that the birth had manifested itself in the excretion of blood and nothing more. It was only when she could not present evidence of the discharged blood that she shifted goal posts and disclosed that she had given birth to a live baby but that the accused had killed this baby by strangulation.

            The alleged strangulation of the deceased became central to the State case because the State case was built around that theory. Even the accused's own undisputed confirmed warned and cautioned statement spoke to the death of the deceased by strangulation.

            The difficulty with the position of the State is that it did not accord well with the findings of the post-mortem report Exhibit 1 which gave the cause of death as having been due to head injury.

            Of all the witnesses who gave evidence in this case it was only the accused who gave an explanation that possibly explains the head injury to the deceased.

            Her explanation was that the key state Witness Shingairai who had all along denied having been pregnant went into labour under the guise of relieving herself and dropped the fragile deceased whilst in a crouching position with no preparation for birth having been put in place because of Shingairai's secretive approach to her pregnancy. She said when the deceased was born she fell on a rough surface and she heard her cry once.

            She further stated that as Shngairai attempted to lift the deceased she smashed it on the unfriendly earth surface, she could not tell whether this act was a deliberate or accidental one. This explanation would be consistent with the post-mortem report and also run contrary to the method of killing the deceased which is contained in the accused's confirmed warned and cautioned statement.

            The accused explained the circumstances surrounding her offer of two goats to the two members of the neighbourhood watch committee. She explained that although she admitted the offence to them all she wanted to do was to protect Shingairai.

            The accused's explanation might be false but it is reasonably true.

            We are all agreed that other than the unsatisfactory evidence of the key witness for the State, Shingairai, this witness is mentally challenged. We all observed this and even her biologically mother the accused testified to this effect and said it was precisely because of this that she was advised by teachers not to waste her resources sending her to school.

            Faced with the evidence of such a witness, being the star witness for the State who is also an accomplice, we found it unsafe to convict the accused on the main charge of murder.

            However we reckon that in deciding to secretly bury the remains of the deceased, the accused collided with another statutory obligation, viz s 106 of the Criminal Law (Codification and Reform) Act [Cap 9:23]

            After the mysterious death of the deceased, the accused and her daughter confirmed to secretly burying the deceased's remains in violation of the law.

            In passing we wish to spare a page on the conduct of Robert Togara and Shirley Madoro, the two members of the neighbourhood watch committee charged with among other things policing Chikofa Village, under headman Chipindu, Chivi area.

            It is refreshing to note that in a country which is literally clueless as to how effectively it can stamp out corruption in almost every sector we have simple citizens of this country who are able to resist the temptation to be corrupted as they engaged in their policing duties. These were offered two goats by the accused in order to put a lid to the crime which the accused was facing. The two remained steadfast in the execution of their duties. Such conduct cannot go unnoticed.

            It was also the vigilance of Togara which exposed this crime. The enthusiasm of this officer in the execution of his duties is commendable and one hopes that the authorities that be will also appreciate his potential and give it due recognition.

            In conclusion, having considered the case the court is of the unanimous view that the evidence has not established the accused's guilt beyond a reasonable doubt. She is entitled to an acquittal on the main charge. The accused is found not guilty and acquitted of murder but found guilty of contravening s 106 of the criminal Law (Codification and Reform) Act [Cap 9:23], which is a competent verdict to the charge of murder.

      Sentence

            In considering an appropriate sentence, we have been guided by the following factors; the accused is a first offender with unusually heavy family responsibilities thrust upon her.

            She is not only looking after her mentally challenged daughter, Shingairai but is also looking after Shingairai's child from an earlier abortive marriage. She has been in custody ever since these allegations arose on 3 May 2013. The accused strikes us as a frail woman who requires to be treated with extreme mercy.

            In aggravation, we note with concern the accused's inclination towards crime. She attempted to bribe the two members of the neighbourhood watch committee with two goats in order to stop them from carrying out their duties.

              The accused is supposed to be Shingairai's mentor but she corrupted the girl's thinking by conspiring with her to depose of the deceased in the manner they did.

            The accused is sentenced as follows;

            Six months imprisonment of which three months imprisonment is suspended for a period of 5 years on the condition that within that period the accused person does not commit any offence involving concealment of birth of a child for which upon conviction she will be sentenced to imprisonment without the option of a fine.

            The remaining three months imprisonment is wholly suspended on the condition that the accused completes 105 hours of community service at Chamatutu Primary School in Chikofa Village, Chivi. The community service is to be performed every Monday to Friday other than a Public Holiday from 0800 hours to 1300 hours and then from1400 hours to 1600 hours. It is to be performed to the satisfaction of the person in charge who may on any good cause shown grant leave of absence on any number of days. Such leave of absence shall not form part of the community service performed. To start on 23 June 2014. 

 The Criminal Division of the Attorney General, the State's legal practitioners

Messrs Saratoga Makausi Law Chambers, accused's legal practitioners   

BERE J ______________________
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