MAKONESE J: The deceased
was aged 24 years when she met her death. She died in a most horrific
manner. At the time of her death she was employed as a merchandiser
with a company known as Ocean Foods. On the 19th
March 2016 deceased dropped off from an omnibus at Makoni Shopping
Centre in Pumula South around 2020 hours. She walked along an unnamed
tarred road linking the business centre and her place of residence.
Without any warning the deceased was struck on the back of her head
with a stone and she fell down. Deceased sustained a deep wound on
the back of her head and started bleeding profusely. The deceased
somehow managed to stagger to her home. She collapsed upon entering
her bedroom. She was rushed to hospital where she succumbed to the
injuries sustained in the attack and died in hospital on 22nd
March 2016.
The 19 year old accused was
arrested in connection with the murder of the deceased. A mobile
phone stolen from the deceased at the scene of the crime was traced
to the accused. Accused pleads not guilty to the charge of murder. He
proffers a complete denial to the charge and states that he has been
wrongly implicated. His defence outline amounts to a bare denial. He
alleges that he will dispute each and every allegation of fact that
is inconsistent with his defence outline and puts the state to the
proof of each allegation against him.
Accused further states in his
defence outline that although he was found in possession of the
deceased's cellphone he had bought it from one Nkosilathi at a
beerhall at Makoni Business Centre, Pumula South. No-one witnessed
the transaction and Nkosilathi's further particulars are not known
to the accused.
The State tendered into the
record the outline of the State case (exhibit 1). It shall not be
necessary to repeat the entire contents of the State Outline, which
now forms part of the record. The Defence Outline was tendered as
exhibit 2. Its contents are brief and short on detail and as I have
already indicated. The accused's confirmed warned and cautioned
statement was produced and marked exhibit 3. The accused's
handwritten version of the statement was marked exhibit 3(a). The
English translation of the accused's warned and cautioned statement
which was duly confirmed of a magistrate at Tredgold Building on the
19th
May 2016 is in the following terms:
“My name is Tinashe Siziba. I
stay at Robert Sinyoka at Number 118. On 19th
day of March 2016 I was drinking beer at Makoni Business Centre,
Pumula South, Bulawayo. I left this place around seven in the evening
now going home. I met a certain lady near a church in Pumula South. I
struck her with a stone and she fell down. I took from her a phone
and her bag. It was a Lumia Nokia type of phone with an Econet sim
card (line). I opened her bag took out a white T-shirt written Oceans
threw it down besides her. I ran away and when I got to a stream I
threw away the bag taking away $2,00. I went home to retire to bed. I
woke up in the morning and went to Kudakwashe Mxolisi Moyo's place,
I told him that I had a phone for sale but I did not tell him where I
got it from. We left for Pumula Old Business Centre. On getting
there we asked Mayors to look for someone who wanted it. Mayors sold
the phone to Bekinkosi Gathuso for $15,00. Mayors came and gave me
the money.”
The next documentary exhibit 4,
is the affidavit by Constable Edson Chikunguru who identified the
body of the deceased at the United Bulawayo Hospital mortuary on the
22nd
March 2016. The post mortem report number 246/242/2016 compiled by
Dr Roberto Trencu, after an examination of the body of the deceased
was tendered as exhibit 5. The post-mortem report lists the cause of
death as:
(1) Severe cerebral oedema.
(2) Skull fracture compressive
epidural haematoma.
(3) Head trauma in unknown
circumstances.
Exhibit 6 is a brownish handbag,
identified as the one that was in possession of the deceased when she
met her tragic death. A Nokia Lumia, black in colour, with a purple
pouch was produced as exhibit 7. The cellphone was identified as
belonging to the deceased.
State Case
Best Ntini
The State opened its case by
leading viva voce evidence from Best Ntini. He testified that he
resides at 12129 Pumula South, Bulawayo. He knew the deceased as his
niece. They were residing at the residence at the material time. On
the 19th
of March 2016 the deceased left for work at about 0800 hours. She was
carrying a brownish hand bag. On the same date and at about 2000
hours the witness realised that the deceased had not returned from
work. This was unusual. At around 2030 hours the deceased arrived
home with blood stains all over her clothes. She went straight to her
bedroom. The witness followed her to her bedroom and observed that
she had a deep cut at the back of her head. She was bleeding
severely. She was also bleeding through the ears. She appeared
confused. She attempted to get up but collapsed to the floor. The
witness was terrified by what he saw but deceased was unable to
relate what had transpired.
The witness summoned Christopher
Gwisi a neighbour for assistance. The witness and his wife failed to
secure an ambulance and subsequently deceased's employer sent a
motor vehicle which ferried the deceased to hospital.
The following day when the
witness went for a hospital visit he was informed that the deceased
had been taken to the Intensive Care Unit. The deceased's condition
deteriorated and she died in the early hours of the 22nd
of March 2016. The witness testified that he later recovered a
T-shirt belonging to the deceased inscribed “Ocean Foods” at the
scene of the crime. The witness testified that the deceased's hand
bag and cellphone were missing. The matter was left in the hands of
the police who had commenced investigations.
The evidence of this witness was
given in a clear and logical manner. He was not contradicted under
cross-examination. He gave his evidence calmly and did not exaggerate
events. He narrated precisely what he knew in connection with the
matter. His evidence is credible and the court has no hesitation in
accepting his testimony.
Ariel Ntini
He resides at 12129 Pumula South,
Bulawayo with his father, Best Ntini. He knew the deceased during her
lifetime as a cousin. His evidence is largely similar and
corroborates that of the previous witness. He was seated in the
kitchen when the deceased entered the house with blood dripping from
her head. Her clothes were full of blood. The witness screamed and he
called out for his father. He tried to speak to the deceased but she
did not respond. The witness took a bucket of water and cleaned the
wound at the back of her head. Best Ntini then went and sought the
assistance of a neighbour, one Christopher Gwisi. The deceased was
taken to hospital where she died after a few days from injuries
sustained in an attack upon her on the night of the 19th
of March 2016.
On the 18th
May 2016 the witness was summoned to the CID Homicide offices at
Bulawayo. Upon his arrival he was shown a variety of cellphones and
was asked to identify the deceased's cellphone. The witness
positively identified a Nokia Lumia cellphone as the one belonging to
the deceased. The witness recognized the purple pouch and the cracked
screen. This witness confirmed that when the deceased left she was
carrying a brownish bag. The witness confirmed that the handbag,
exhibit 6, and the cellphone, exhibit 7, tendered in evidence indeed
belonged to the deceased. The witness confirmed that he was not known
to the accused prior to his arrest. He only came into contact with
the accused when he observed him making indications at the crime
scene.
This witness gave his evidence in
a simple and straight forward manner. There was no tinge of
exaggeration in his account. He narrated events in a clear and
logical sequence. His evidence was not contradicted in any material
respect under cross-examination. The court accepts his evidence as a
correct reflection of what transpired on the fateful day. The court
also accepts the observations made by the witness as it relates to
the identity of the deceased's handbag and cellphone.
Gilbert Sigauke
The next witness for the State
was Detective Constable Sigauke. He is a duly attested member of the
Zimbabwe Republic Police. He is attached to the CID Homicide Squad,
Bulawayo. He has 21 years service in the police force. He is the
Investigating Officer in this case. On the 23rd
of March 2016 whilst on duty he was allocated a docket of murder to
investigate. The docket relates to the deceased, Petronella Zimende,
a female adult during her lifetime.
The witness revisited the crime
scene. He located Best Ntini and the other State witnesses from whom
he recorded statements. The witness was alerted to the fact that when
deceased had left for work on the fateful day she was in possession
of a Nokia Lumia cellphone with an Econet line. The witness
proceeded to apply for a court order compelling network service
providers to track and establish whether the deceased's handset was
being used, using the IMEI (International Mobile Equipment Identity).
The IMEI is a unique 15 digit serial number allocated to every mobile
phone which can then be used to check information such as the phone's
country of origin, the manufacturer and its model number. The model
code or serial number and IMEI are printed on the back of the
handset. No two devices will have the same IMEI which makes it a very
useful tool for tracking lost or stolen cellphones.
On the 17th
May 2016, the witness received information from Telecel Zimbabwe to
the effect that the deceased's handset was being used by a
subscriber registered in the name of Bhekinkosi Gumbo of House Number
C5074 Old Pumula, Bulawayo.
The witness managed to locate
Bhekinkosi Gumbo who led him to Mayors Zulu as the person who had
sold him the cellphone. Mayors Zulu then led the witness to accused
person. The accused was arrested and detained for further
questioning.
At first, the accused told the
witness that he had picked up the cellphone at the shopping centre.
The accused later admitted involvement in the murder and reduced his
version of events in his own handwriting in the Ndebele language. The
statement was translated into the English version. A warned and
cautioned statement was recorded from the accused and he was taken
before a magistrate for confirmation of this statement. The accused
confirmed before the magistrate that he had given his confession
freely and voluntarily without any undue influence.
The witness testified that the
accused took him and his team of detectives for indications at an
open space at Pumula South where the deceased was attacked. The
witness invited Best Ntini to the crime scene where he indicated the
place where he had picked up the T-shirt belonging to the deceased.
The accused led the witness to a stream bank where the brown handbag
belonging to the deceased was recovered from a location where it was
covered by grass. The handbag was positively identified by Ariel
Ntini as the bag deceased had been carrying on the day she had been
attacked. The witness described the accused as a person who had given
“excellent” co-operation during the course of indications and
investigations. The witness flatly denied that the accused had been
subjected to any physical assaults. The report from Telecel Zimbabwe
indicating that the deceased's handset was traced to Bhekinkosi
Gumbo was tendered into evidence as exhibit 8.
The evidence of the witness was
credible and reliable. He was not contradicted under
cross-examination in any material respect. His evidence corroborates
the accused's version as contained in the confirmed warned and
cautioned statement. There was no motivation for this witness to lie.
In my view, this matter was properly investigated, leading to the
arrest of the accused. The court accepts the evidence of this
witness.
The State then applied for formal
admissions in terms of section 314 of the Criminal Procedure and
Evidence Act (Chapter 9:07) in respect of the evidence of the
remaining State witnesses to be tendered into the record as it
appears in respect of the outline of the State case.
The application was not opposed
by counsel for the accused and, in the event, the evidence of the
following State witnesses was admitted:
(1) Christopher Gwisi.
(2) Thili Moyo.
(3) Bhekinkosi Gumbo.
(4) Mayors Zulu.
(5) Kudakwashe Moyo.
(6) Bukhosi Mbekezeli Ncube.
(7) Dr Roberto Trencu.
The State closed its case and the
defence opened their case.
Defence Case
Tinashe Siziba
The defence led oral testimony
from the accused person under oath. The accused stuck to his Defence
Outline. He denied any involvement in the murder of the deceased. He
stated that he never met the deceased person on the day in question.
He denied attacking the deceased and robbing her of handbag,
cellphone and cash amounting to $2,00 as alleged by the State. The
accused averred that he was a victim of circumstances and that he was
being falsely implicated. He stated that he was assaulted by police
detectives leading him to admit committing the murder. Accused could
not however proffer any motive for him to be falsely implicated.
Accused could not stand by his Defence Outline because there was no
Defence Outline. His Defence Outline was a bare denial. He denied
each and every allegation as contained in the State Outline.
He deprived himself the
opportunity of rebutting the crucial allegations regarding the link
between himself and the deceased's cellphone. That piece of
evidence was extremely damaging to the accused's case.
When he was confronted by police
detectives at the first instance, accused said that he had picked up
the deceased's phone. When pressed to explain how and where he
picked the cellphone accused had no choice but to relate the truth to
the police. The police asked accused to write his own statement in
long hand in his own handwriting. The statement recorded in the
vernacular language was translated into the English version. That
version now forms part of the record. The statement contains precise
details regarding the murder to such an extent that there is no
possibility to infer that the statement was dictated to the accused.
The details in the warned and cautioned statement could only have
come from one with actual knowledge of how that crime was committed.
The Investigating Officer gave
clear and reliable evidence of how he had used the IMEI
(International Mobile Equipment Identity) number of the deceased's
cellphone to link it to the deceased. The police followed their leads
and interviewed Bhekinkosi Gumbo who led them to Mayors Zulu. Mayors
Zulu led the police to the accused. The net had closed in and
ultimately accused had nowhere to hide. His attempt to cast
aspersions on the conduct of the police is without merit. If accused
had been assaulted to give a false confession, he would have raised
this with the magistrate who confirmed his statement. The court takes
judicial notice of the fact that if accused had been kicked in the
neck by the detective in the manner he described he would have
suffered serious if not fatal injuries. This allegation, in my view
was made to simply mislead the court.
The accused conveniently averred
that when he bought the cellphone from Nkosilathi there was noone to
witness the transaction. The accused does not have any further
details on this Nkosilathi. The court can safely conclude that the
said Nkosilathi is a fictitious creation by the accused person.
The evidence of Kudakwashe Moyo
was formally admitted into the record is to the effect that:
“… accused told him that he
had a cellphone he wanted to sell. The accused showed this witness a
black Nokia Lumia cellphone with a purple cover. This witness will
state that he asked the source of the cellphone and he told the
witness that he stole it in Pumula North and his polo neck jersey
with a trade mark of Lacoste was torn during the robbery.”
It has to be noted that
Kudakwashe Moyo was accused's friend at the relevant time. There
was no motive for this witness to fabricate such evidence. There was
nothing for Kudakwashe to gain. From the accused's own testimony
the relationship between the two was good. The only conclusion is
that Kudakwashe must have been giving the correct version of what
transpired. The handbag was recovered through the initiative of the
accused. The police would not have guessed that the handbag was some
2 kilometres from the crime scene under some grass on a stream bank.
The accused must have made the indications that led to the recovery
of the handbag.
Conclusion
The court is satisfied that the
State has adduced overwhelming evidence against the accused to secure
a conviction. The accused was not an impressive witness. He sought to
depart from his confession in the most unconvincing fashion. The
accused's demeanour on the witness stand was poor. He did not
answer questions directly and he put up a patently false defence.
Our law on the admissibility of
confessions is settled.
See the case of Colgate
Duffen Mudenda vs The
State SC-54-15.
In this matter the Supreme Court
upheld a death sentence imposed in the lower court and held that a
confession had properly been admitted into evidence. The court held
per MALABA
DCJ at page 2 of the cyclostyled judgment as follows:
“The trial court correctly
found on the analysis of the contents of the warned and cautioned
statement that it was an expression of a genuine confession by the
appellant of his involvement in the planning and murder of the
deceased. The statement contains references to facts which could only
have come to the knowledge of the appellant through direct
participation in the conspiracy and execution of the agreement to
kill the deceased for money and to extract warm blood from his body
for ritual purposes. Not only did the appellant give a comprehensive
statement of what he said happened, the facts to which it relates
were presented in a coherent manner producing a convincing story into
which all the known facts dovetailed perfectly.”
See also the case of Edward
Dima v The
State SC-129-04.
In the instant case there is
sufficient evidence aliunde to prove that the accused's confession
is a genuine admission of the commission of the office.
The court notes that there is no
direct eye witness account relating to the murder. The State case is
therefore premised on circumstantial evidence. The cardinal rules of
logic were established in the case of State
v Blom 1939
AD 188. We are satisfied that all the proved facts are consistent
with the version contained in accused's confession.
The State has conceded that the
accused may only be convicted of murder with constructive intent. We
agree with that assertion. There is no evidence before the court to
establish the fact that accused set out to rob and kill the deceased.
On the facts, he however foresaw death as a real possibility: Accused
is accordingly found guilty of murder with constructive intent.
Reasons for sentence
In assessing an appropriate
sentence the court takes into consideration all the mitigating
features of the case as set out by accused's defence counsel.
Accused is a 19 year old youthful offender. He lost both parents
when he was still young. He therefore lacked the requisite parental
love and care.
The accused is a first offender.
Accused has however thrust
himself at the deep end. He finds himself guilty of murder with
constructive intent. The murder was perpetrated during the course of
a robbery. For her part the deceased lost her life for a cellphone
and a paltry $2,00. Those were the only valuables accused took from
the deceased.
The court frowns upon the unruly
behaviour that is reflected in this matter. The accused has shown no
remorse up to the end. He has chosen to defend himself on the hope
that he would escape punishment. Accused caused the unnecessary and
tragic loss of human life. The victim was pregnant at the time and
therefore two lives were lost. Courts will impose stiff sentences in
cases where people choose to disregard the law and live by means of
violence. This court must however balance the interests of the
accused and those of the administration of justice. A lengthy prison
sentence is unavoidable in spite of the Constitutional provision
under section 81 Constitution of Zimbabwe Amendment No.20 (2013) as
argued by defence counsel.
It was argued by counsel for the
accused that the court must have regard to the provisions of section
81(1)(i), which provides as follows:
“Every child has, that is to
say every boy and girl under the age of eighteen years, has the right
–
(i) Not to be detained except as
a measure of last resort, and if detained –
(ii) To be detained for the
shortest appropriate period;
(iii) To be kept separately from
detained persons over the age of eighteen years …”
Whilst in every other case the
courts always endeavour to keep youthful offenders out of prison, in
cases such as murder, the courts are enjoined to impose such
custodial sentences as will fit the offence and the offender. It
cannot be argued that a short custodial sentence would be appropriate
for a murder committed in aggravating circumstances. The General Laws
Amendment Act (No.3) 2016 now provides a guideline on the range of
sentences that should be imposed where a murder is committed in
aggravating circumstances. Part XX of the General Laws Amendment
provides, under section 2 and section 3, that a court shall regard as
an aggravating circumstance the following:
(a) the murder was committed in a
robbery.
(b) the murder victim was
pregnant.
In my view, the murder was
clearly committed in aggravating circumstances. However, the court
must take into consideration the accused's youthfulness. The court
has also made the finding that this was a murder committed with
constructive intent. These two factors tend to substantially reduce
the accused's moral blameworthiness. The court must not condemn the
accused to a sentence that provides no opportunity for
rehabilitation.
The courts must however protect
the sanctity of human life. In the circumstance the accused is
sentenced as follows.
“Accused is sentenced to 20
years imprisonment.”
Prosecutor General's Office, state's legal practitioners
Coghlan & Welsh, accused's legal practitioners
