Criminal
Trial
CHITAPI
J:
The
accused is charged with the crime of murder as defined in s47 of the
Criminal Law (Codification & Reform) Act, [Chapter
9:23].
The
accused pleaded not guilty to the allegations that on 23 October, he
unlawfully caused the death of Modester Chikaka by pouring paraffin
over her body and setting her alight with the result that Modester
Chikaka suffered severe burns all over her body which is turn led to
her death of 26 October, 2011.
The
accused elected to give a defence outline in support of his plea of
denial.
The
upshot of his defence outline was to the effect that the deceased
poured paraffin on herself and set herself alight and that he did not
pour paraffin upon the deceased nor her setting her alight. He
outlined that he confronted the deceased in connection with her
“suspected numerous extra marital affairs” since the deceased was
his wife. He further outlined that the deceased in fact poured
paraffin from a stove upon herself and “somehow” went ahead to
and lit herself despite the accused's attempt to stop the deceased
from doing so.
He
stated that the deceased after setting herself alight, tried to
“embrace the accused person intending to cause harm to him but he
managed to slip away going out of the room”.
He
outlined that he assisted the deceased to “put off the fire by
pouring some water on her at the water tape which was near the
house.”
He
also further “extinguished the fire which was burning inside the
house in question”.
In
manner of speaking, the accused's defence was simply that the
deceased intentionally brought about her death or committed suicide
by pouring paraffin upon and setting her body alight.
The
State opened its case by tendering and producing by consent of the
accused, two affidavits sworn to, respectively by doctors Ndekwere
and Munhumeso.
The
affidavit by Dr Ndekwere was produced as exh 1.
He
examined the now deceased following her transfer from Chivhu Hospital
to Harare Hospital on 23 October, 2011 around 10.20 hours. He
observed and commented that the deceased had suffered 76% open flame
burns on her torso, lower and upper limbs as well as on the neck. The
doctor recommended that the patient should be admitted in the Burns
Ward at the hospital.
Exhibit
2 was also a medical affidavit prepared by Dr Munhumeso who examined
the now deceased on 23 October, 2011 around 0300 hours at Chivhu
Hospital. He observed that the now deceased had sustained paraffin
burns on the chest, abdomen and both upper limbs. He stablilized the
patient and caused the patient's transfer to Harare Central
Hospital for further management after noting the seriousness of the
burns which he assessed to be about 35% surface burns.
Another
exhibit produced by consent was the accused's confirmed warned and
cautioned statement as exh 3.
The
statement was confirmed by the magistrate on 16 November, 2011
following its recording on 2 November, 2011.
The
accused's statement was to the following effect quoted verbatim.
“I
have understood the caution but I am denying the charges. On the day
in question, I arrived at Modester Chikaka's house at around
0130hrs. She opened the door and I went inside the house and set on a
chair. After greetings, I then told her that I wanted to discuss some
stories, which were circulating in town of her affairs with other
men. I told her that I was not happy about that because it was
embarrassing me.
After
I had told my story that is when Modester Chikaka woke up from the
bed where she was sleeping and put on her skirt and blouse, sat on a
chair on the other side of the table. She did not respond to any of
the questions I put to her.
She
got up from where she was seated and picked up a paraffin stove,
which was next to the bed, opened it and poured the paraffin on her
clothes. She put the stove on the floor. I then stood up and went to
where she was after I had noticed that she was looking for some
matches. When I grabbed her she was already having some matches in
her hand. I got hold of her hands so that she could not lit the
matches.
We
struggled with each other in the house until I managed to take the
matches from her.
She
went and sat on a chair which she had been sitting on and I also sat
on a chair. We spent about ten to fifteen minutes while I was
questioning her about the story but she was not responding.
Whilst
I was sitting, Modester Chikaka got up from where she was seated and
picked another matches and struck a matchstick before I got close to
where she was and lit herself and embraced me whilst she was
screaming. I opened the door while she was still embracing me and she
was crying. When I opened the door, the fire burned heavily. She then
ran to the tap where she poured some water on her.
I
followed her to the tap, helped her to extinguish the fire.
I
then went into the house to extinguish fire which was burning there
and that was when Modester Chikaka informed her neighbours that I had
burned her. I did not want to dispute with her because it was a waste
of time. I then boarded Cst Miti's car and went to the hospital. We
further visited the police station where I was arrested and Modester
Chikaka was taken to the hospital.”
It
is important to note the following significant points and conclusions
from the statement:
(i)
the deceased had already retired to bed at the time that the accused
arrived at the deceased's house around 0130 hours. The deceased
opened the door, let the accused inside and the latter sat on a
chair.
(ii)
the accused confronted the deceased to discuss rumours circulating in
Chivhu town that the deceased was having affairs with other men, such
rumours being an embarrassment to the accused and over which he was
unhappy.
(iii)
the deceased did not respond to the accusations but instead left the
bed where she had gone back to sleep, put on her skirt and blouse and
sat on a chair on the other side of the table from which the accused
sat.
(iv)
The deceased without saying anything stood up from the chair, picked
up a paraffin stove which was next to the bed, opened it and poured
the paraffin on her clothes.
(v)
The accused stood up from his chair after noticing that the deceased
was looking for some matches. He managed to grab the deceased's
hands which were holding some matches so that she would not light the
matches. The accused and the deceased struggled with each other and
the accused succeeded in taking away the matches from the deceased.
(vi)
After the accused had dispossessed the deceased of the matches, the
two returned to their sitting positions on the chairs which they had
been sitting on before the struggle for possession of the matches.
(vii)
For the next ten to fifteen minutes, the accused continued to
interrogate the deceased in regard to the same rumours that the
deceased had boyfriends. The deceased did not respond to the
accusations.
(viii)
As the accused was still seated, the deceased got up from where she
was seated, picked up another “matches,” struck a match stick and
lit herself before the accused could get close to where the deceased
was.
(ix)
The deceased after setting herself ablaze embraced the accused whilst
she was screaming. The accused was able to open the door as the
deceased was still in an embrace on him and she was crying.
(x)
When the door was opened, the fire burned heavily. The deceased then
ran to the tap where she poured water on herself. The accused
followed and assisted the deceased to extinguish the fire.
(xi)
The accused returned to the house, went inside and extinguished the
fire which was burning there. It was then that the deceased informed
her neighbours that the accused had burnt her.
(xii)
The accused did not dispute the accusation because to him it was a
waste of time.
It
was therefore clear on the accused's account as given to the police
that the deceased and the accused were engaged in a disagreeable
discussion when the tragedy took place.
The
accused's explanation to the police was therefore simply that when
he confronted the deceased about rumoured affairs which the deceased
allegedly had with other men the deceased neither denied the
accusation nor admitted them. Her response was to open the paraffin
stove, pour paraffin upon herself and attempting to burn herself
before being disabled by the accused where after she sat back on the
same chair that she had been seated on before her failed attempt to
burn herself.
Another
follow up interrogation of 10–15 minutes resulted in the deceased
reaching for another box of matches and setting herself alight before
embracing the accused whilst screaming.
The
accused opened the door to the house/room whilst the deceased still
held him in an embrace. The deceased then ran to the water tap and
poured water on herself with the accused following and assisting her.
The deceased reported that the accused had burnt her, an accusation
which the accused did not contest because to do so would have been
waste of time.
At
this stage it is necessary to note that the accused's confirmed
statement whose contents have been outlined will, as provided in
s256(1) of the Criminal Procedure & Evidence Act, be taken as
evidence against the accused, there being no challenge to its
admissibility or authenticity.
Accordingly,
the statement will be considered together with all other evidence
adduced by the State in assessing the sufficiency of evidence led in
support of the charge or allegations against the accused.
The
State also led evidence from three witnesses namely Tawanda Miti,
Nyasha Tsopotsa and Sekai Guramatunhu. The summary of the evidence of
these witnesses was as outlined hereunder:
Tawanda
Miti
Is
a police officer with C.I.D and is based at Southerton Police
Station, Harare. When the incident in this matter took place, he was
stationed at Chivhu police station. He knew both the deceased and
accused as lovers. The deceased and the witness shared the same
residence where they lived in adjoining rooms sharing the same
veranda. The residence was in the form of a standard block with
partitioned rooms each room with its entrance door which was accessed
from the veranda. When one is standing on the veranda, the doors to
the rooms lead into the rooms from the veranda. The deceased occupied
one room at the furthest end. The witness used the next two rooms
after the deceased's room and the fourth room door led into the
common washroom and toilet. Behind the toilet was a water tap.
There
was no dispute as to the make-up of the residence and the rooms.
He
testified that he had retired to bed with his wife when he woke up
around 2.00am to screaming by a person calling out his name. He got
out of bed, opened the door and got out of his room. He then saw fire
flames inside the deceased's room. He was shocked by the spectacle.
He then saw the accused arriving on the veranda and he ordered the
accused to put out the fire. He next observed the deceased coming
from behind the residence in the direction where there was a water
tap. He observed burns on the deceased.
He
then heard the deceased to say to the accused, “why did you not
pour paraffin on yourself as well since you said that you wanted both
of us to die?”
The
deceased went on to tell the witness that the accused had poured
paraffin on her and lit her up.
The
deceased also said that the accused had the matches on him, to which
the accused responded that the deceased had poured paraffin on
herself.
The
witness at this stage instructed his wife to cover the deceased with
a blanket after where the witness provided his vehicle and ferried
the deceased and accused to the police station where the accused was
placed under arrest and the deceased ferried to hospital.
The
State counsel asked the witness to repeat the exact words which the
deceased reportedly uttered to the witness when the witness came out
of his room to check on what was happening. The witness said: “She
said accused took paraffin from a paraffin stove and poured on her.
He then took a matchstick, lit it and threw it at me. She then went
out of the house to pour water on myself whilst screaming”.
The
witness further repeated that the deceased when coming from the tap
said, “why did you not set yourself ablaze too since you wanted
both of us to die? Why have you killed me?” Asked whether the
accused responded, the witness responded that the accused answered,
“I did not kill you. You poured paraffin on yourself.”
The
witness said that the accused proceeded to extinguish the fire in the
house after coming on to the veranda from the direction of the tap as
per the witness' assumption.
Under
cross-examination, the witness admitted that he did not know for a
fact as to who poured paraffin on the deceased. He also did not
witness the accused setting the deceased on fire.
The
witness was asked “You did not hear her calling out that accused
had set her ablaze whilst you were in your room?” and he responded;
“She was saying that. She said so as she called out for my help.”
The
witness agreed that in his witness statement recorded on 3 November,
2011, he did not mention that the deceased had shouted that the
accused had set her ablaze.
The
witness said that the omission could have been a result of oversight.
The
witness agreed that he could not deny that the accused assisted the
deceased to douse off the flames at the tap.
The
witness agreed that the accused denied that he had set the deceased
ablaze when the deceased was making the accusation.
He
agreed that the accused had responded that the deceased poured
paraffin on herself.
The
witness said that prior to hearing the screaming which woke him up,
he did not hear any commotion whilst he was asleep.
He
said that the accused was searched at the charge office and found to
be having a box of matches in his pocket. The witness agreed that in
his recorded statement he stated that the accused explained his
possession of the matches by saying that he took the box of matches
from the deceased.
The
court's assessment of the evidence of this witness was that he was
an honest and impressive witness who gave a simple narration of the
events which he witnessed. The cross-examination the witness was not
eventful because he maintained his story.
His
evidence was clear that the deceased accused person of pouring
paraffin upon her and setting her ablaze with matches. His evidence
was equally clear that the accused responded to the allegation by
denying the accusation and instead accusing the deceased of having
poured paraffin on herself and set herself ablaze.
It
was not suggested to the witness that the deceased did not name the
person who had harmed her. What was put to the witness in
cross-examination was that the accused denied the allegation.
It
was not denied that the deceased went further to ask the accused as
to why he had not equally poured paraffin upon himself so that he
dies together with the deceased as he had wished or declared.
It
was not denied that the deceased uttered the words, “why have you
killed me.”
The
court having been impressed by the demeanour of the witness, his
self-confidence and standing unshaken under cross-examination
accepted the evidence of the witness as reliable.
The
next witness was Nyasha Tsopotsa, the wife of the last witness.
She
testified to having been asleep with the last witness when she heard
screaming sounds and a door being forcibly opened. The first witness
woke up as well but before either of them had left their room, the
witness heard the sound of footsteps outside going in the direction
of the water tap. The person screaming was calling out her husband,
the first witness' name.
The
first witness went out of their room first before she followed.
When
she exited their room, she saw the deceased behind the toilet door
dressed only in her petticoat which was stuck to her body. The
deceased had visible burns. She saw the accused by the door of the
deceased room.
She
heard the deceased saying to the accused “dai wandipedza. Wabvira
kundishungurudza, wandipisa” which words translated into English
mean “You should just have finished me. You have been persistent in
harassing me. You set me on fire”.
She
heard the accused to respond saying, “You set yourself on fire.”
She
testified that the last witness ordered her to find something to
cover the deceased with. She obliged and took one of the deceased's
bed sheets and covered her with it.
The
first witness, deceased, and accused then drove away in the first
witness's vehicle.
When
asked to recite the first words which she heard the deceased to say,
she responded and said in Shona, “Maiwe ndofa” which was
translated as “Mother I am dying!”
She
said that she heard screaming and the door opening at the same time
followed by footsteps which proceeded in the direction of the tap.
When the deceased was screaming, she was shouting “Father of
Brendon” in reference to the first witness.
When
the witness came out of her room, she said that she saw the deceased
talking to the accused person accusing him of having set her alight.
The
witness remained at home when the deceased and the accused drove away
from the scene.
Under
cross-examination, the witness agreed that she did not hear the
deceased to say that someone was killing her. She said that she heard
the deceased saying “mother I am dying”. The witness said that
she did not know what had happened prior to this.
The
witness reiterated that when she got out of the house, she heard the
ceased saying to the accused, “you poured paraffin on me and burnt
me.”
The
witness said that she could not dispute that the accused assisted in
dousing the deceased of the fire burning her because by the time she
got to the scene, the deceased was behind the toilet door accusing
the accused of pouring paraffin on her and setting her blaze.
The
witness agreed that the accused disputed or denied the allegation.
The
witness was not re-examined nor did the court seek any clarifications
on her evidence.
The
court as with the last witness was impressed by the demeanour of the
witness. In fact nothing eventful or new came out of the cross
examination of the witness. Her evidence was largely corroborative of
that of the last witness.
Significantly
the accused's counsel in cross examination did not deny that the
deceased made accusations pointing to the accused as having poured
paraffin on her and set her light.
The
witness evidence that the deceased accused the accused of persistent
harassment and that the deceased said that you should have finished
me were not disputed either.
The
court therefore accepted that the deceased uttered the words
testified to by the witness. The court also noted that the accused
denied the accusations.
The
last witness was Sekai Guvamatunhu a police constable who was one of
the duty officers at Chivhu Police Station when the deceased was
brought to the police station by the first witness who made a report
concerning the deceased having suffered burns.
The
deceased was inside the first witness's car.
The
witness proceeded to the vehicle which was parked outside the charge
office and observed the deceased. She noted that the deceased had
severe burns. She suggested that the deceased should be ferried to
the hospital urgently.
When
the witness tried to speak to the deceased, the accused came over to
the witness to stop her from speaking to the witness giving the
reason that the deceased had been burnt.
The
witness accompanied the deceased to the hospital in the first
witness's vehicle.
The
witness evidence was not contentious and in any event was relevant in
respect of completing the chain of events. Nothing really turned on
it. The court took and accepted the evidence as given.
The
state closed its case.
Mr
Rubaya
advised the court of his instructions to make an application for the
discharge of the accused person at the close of the state case in
terms of s198(3) of the Criminal Procedure and Evidence Act [Chapter
9:07].
Mr
Rubaya
undertook to file a written application by 5 June, 2018 to which the
state counsel Mr Munyoro
would respond to by 8 June, 2018.
The
case was adjourned to 15 June, 2018 for ruling on the application.
The
state counsel filed his response on 13 June, 2018 despite having
himself undertaken to file the same by 8 June, 2018. The accused's
counsel filed his application on 5 June, 2018 as undertaken by him.
The
court was unable to give a ruling on 15 June 2018 and postponed the
matter to 18 June, 2018 on which date the accused's application was
dismissed. It was indicated that the reasons for the dismissal of the
application would form part of this judgment and they are given
below.
An
application for discharge of the accused person made in terms of
s198(3) of the Criminal Procedure and Evidence Act, raises an issue
of law and as such in terms of s10(1)(a) of the High Court Act,
[Chapter
7:06],
a determination of the application lies within the jurisdiction of
the judge only. Assessors have no voice or input in the decision. The
decision to dismiss the application was therefore made by the judge
alone.
The
evidence led from state witnesses and through admitted exhibits was
that the deceased suffered burn injuries in circumstances where the
only other person present at the material time was the accused.
Evidence
was led that the deceased shouted out for assistance calling out the
1st
state witness' names. The deceased made an accusation in the
presence of the first and second state witnesses, that the accused
had poured paraffin on her body and set her ablaze.
The
accused did not deny that the deceased made those utterances and thus
named him as her assailant.
The
thrust of the accused's legal practitioner's cross examination
was aimed at establishing that the accused denied the accusation.
In
the accused's warned and cautioned statement, exh 3, the accused
admitted that the deceased informed her neighbours that the accused
had burned her. In the same statement, he stated that he did not
dispute the accusation.
This
position contradicted his line of defence as shown by the cross
examination of state witnesses' wherein he put it to the witness
that he disputed the allegation.
Evidence
was also led from state witnesses that the deceased accused the
accused of having subjected her to harassment. Further evidence led
was that the deceased asked the accused as to why he had burnt her
and why he had also not poured paraffin upon himself and burnt
himself as well.
The
defence counsel contended that the affidavits exhibits 1 and 2
produced by the State did not certify the deceased dead nor provide
details of the cause of death thereof.
The
argument then was that there was no evidence of murder led in the
absence of a post mortem report.
The
evidence led did not however place the fact of whether or not the
deceased passed on, into issue. The same applied to the cause of
death. More importantly, s207 of the Criminal Procedure and Evidence
Act provides that:
“….
Where a court finds that part but not all of the facts of an offence
charged have been proved; it shall nevertheless convict the accused
of the offence if the facts that are proved disclose the essential
elements of the offence.”
Further,
s274 of the Criminal Law (Codification and Reform) Act provides that:
“where
a person is charged with a crime, the essential elements of which
include the essential elements of some other crime, he or she may be
found guilty of such other crime, if such are the facts proved and if
it is not proved that he or she committed the crime charged.”
It
is therefore clear that a conviction for the offence charged can be
grounded where the state has not proved all facts of an offence
charged provided that the facts which have been proven disclose the
essential elements of that charged offence.
Equally
an accused can be found guilty of another offence disclosed by proven
facts where the originally charged offense has not been proven but
some other offence.
Section
198(3) of the Criminal Procedure and Evidence Act, cannot be
successfully invoked where the facts on the evidence led are such
that the accused can be convicted on any other cognizable offence on
the evidence led by the state.
It
is in my view critical to note that the effect of s274 is that, where
evidence led and proven facts are found that another cognizable
offence at law was committed other than the one charged, the accused
may be convicted of committing that cognizable proven offence.
In
this regard, such other offence does not have to be a permissible
verdict as provided for in s275 of the Criminal Law (Codification and
Reform) Act.
Section
275 provides for competent verdicts in relation to specified
offences.
A
list of the specified offences appears in the Fourth Schedule to the
Criminal Law (Codification and Reform) Act.
For
the avoidance of doubt where murder is the offence charged, the
permissible verdicts are listed as -
(a)
Infanticide.
(b)
Culpable homicide.
(c)
Any crime which a person might be convicted of if he or she were
charged with a crime specified in paragraph (a) or (b).”
It
is noted that para (c) refers to permissible verdicts on charges of
infanticide or culpable homicide. Permissible verdicts on a charge of
Infanticide or culpable homicide are equally permissible on charge of
murder. The permissible verdicts on a charge of culpable homicide are
listed as;
“(a)
Inciting suicide.
(b)
Rape.
(c)
Public Violence.
(d)
Unlawful termination of pregnancy.
(e)
Assault.
(f)
Threatening to commit murder.
(g)
Any crime of which a person might be convicted if he or she were
charged with a crime specified in paragraphs (a) to (f).”
It
follows therefore that a person charged with murder as in the present
case, may be found guilty of any of the offences listed as
permissible verdicts on a charge of culpable homicide.
Section
274 has however gone further to extend the powers of the court to
convict a person of any other offence proved on the evidence.
In
this regard, s275 which provides for permissible verdicts on
specified offence is applicable subject to the rider that it does not
derogate or limit the application of sections 273 and 274.
It
appears to me therefore that because of the provisions of ss274 and
275 aforesaid, the cases which may be discharged in terms of s198(3)
will be fewer and in between.
To
begin with, it is expected that where there is no evidence that the
accused committed the offence charged, the Prosecutor General should
in line with the exercise of professionalism just concede and
withdraw the indictment if there is no probable chance that the
accused may have committed any other offence which he might be
convicted thereon.
I
need to make it clear that the reference to “any other offence”
should not be limited to a permissible verdict but to any other
cognizable offence at law.
To
this extent therefore, whilst I accept the principles which the
courts are guided by as set out in S
v Tsvangirayi & 2 Ors
2003 (1) ZLR 188, which judgment considered earlier decided cases on
the point, the judgments must now be read taking cognizance of the
effect of s274 aforesaid.
My
understanding was that in earlier judgments, the reference to any
other offence was interpreted as a reference to a permissible
verdict. If I am right in my understanding of the old position as
embraced by the courts, then it is necessary that l pronounce that an
application made in terms of s198(3) of the Criminal Procedure and
Evidence Act at the close of the state should not be granted in cases
where the state evidence prima
facie
establishes the commission by the accused not only of a permissible
verdict offence but of any or other offence cognizable at law.
In
casu,
the state evidence which l have outlined and will not repeat did
prima
facie
establish the possible culpability of the accused on the main charge
in that the deceased named the accused as the person who had
inflicted the burns upon her.
In
reasoning that a prima
facie
case was established in relation to the main charge, I do so mindful
of the defence argument that a post mortem report was not produced.
I
have however considered that proof of death may arguably be
established from the fact that no issue is taken by the accused to
the allegation that the accused died of burn injuries as alleged in
the indictment.
Further,
from the state evidence, it cannot be said that assuming that the
state evidence is accepted, the facts would not ground a prima
facie
case of culpable homicide on the reasoning that if the court were to
accept that the accused as alleged by the deceased did pour paraffin
on the deceased and set her alight with matches, such conduct would
not be classified as or qualify to be described as an act of
negligence as would found a conviction under s49 of the Criminal Law
(Codification and Reform) Act.
Further
still, at the very least, the state evidence prima
facie
established a case of assault as defined in ss88 and 89 of the
Criminal Law (Codification and Reform) Act which is a competent
verdict on a charge of murder by virtue of assault being a competent
verdict on a charge of culpable homicide and culpable homicide being
a competent verdict on a charge of murder.
In
this regard I refer to my earlier exposition of the provisions of
s275.
By
definition, assault as an offence is very wide and includes
application of any substance to another person's body without that
person's consent. Pouring paraffin on someone, constitutes an
assault and setting another person on fire constitutes a very serious
form of assault.
In
my judgment on this application, I determined that the evidence
before the court established a prima
facie
against the accused. It was sufficient to raise a presumption which,
unless rebutted pointed to the accused as having been responsible for
the injurious
assault or injuries suffered by the deceased.
The
word prima
facie,
is a latin word which means, 'at first view' or 'on the face of
it.'
A
prima
facie
case will be established where facts alleged if not rebutted would
result in those facts being conclusive to found a case against the
accused.
As
already alluded to, it was established on the evidence that the
deceased suffered severe paraffin burns which she attributed to the
conduct of the accused. To hold that the accused has no case to
answer would amount to a finding not supportable on the evidence and
a travesty of justice.
It
was for the above reasons that I dismissed the application.
Before
dealing with the defence case. I must comment that l found the
submissions by the defence counsel to be well researched and
assistive to my determination.
Unfortunately,
I cannot say the same for the state's submissions. State counsel's
submissions showed a misdirected understanding of the requirements
and principles which inform applications made under s198(3).
I
have already dealt with them.
State
counsel must learn from this judgment.
I
was left wondering as to whether counsel for the state was now
briefed to argue the defence case as evidenced by how he castigated
the veracity of state witness evidence. State counsel argued that the
court must hold that the deceased must have suffered “some
confusion when she caught fire and mixed up the sequence of events.”
What
was astonishing from the submission was that the deceased could not
have been confused and mixed up the sequence of events because she
never testified. The dead do not testify and as a matter of logic and
common sense, the dead cannot mix-up the sequence of events without
testifying.
The
state counsel also referred to the case of R
v Blom
1939 AD 188 on the drawing of inferences from circumstantial events
or facts.
His
argument or submission was that an inference of guilt could not be
drawn as the only reasonable inference from the evidence led by the
state.
The
reference to the well celebrated case was totally misplaced because
it would not be possible for a court to draw conclusive inferences at
the close of the state case.
The
state's submissions in support of the concession that the state had
not established a prima
facie
case were not well taken and showed a lack of appreciation of the
concepts involved in such applications.
The
accused elected to give evidence.
He
testified an oath that the deceased was his wife of 5 years. He
denied killing her. On the fateful night he said that he arrived at
the deceased's room around 0100 hours, knocked at the door and was
let in. They greeted each other. He sat on a chair whilst the
deceased returned to bed. He then told her that he wanted to speak to
the deceased about rumours going around in town and being peddled by
other people.
The
deceased got out of bed and put on her skirt and blouse. She then
pulled a chair and sat across the table from where he sat.
The
accused said that he accosted the deceased of being in the habit of
frequenting bars in his absence. He told the deceased that she had
been seen by his brother's sons called Kuda Muza and Chivizhe. He
then chided her that her frequenting of bars was a source of
embarrassment for him.
The
deceased did not respond.
He
said that the deceased suddenly got up and said that she would set
herself on fire. She was working her way to the primus stove as she
spoke. The accused had bought for her the primus stove to use in the
event that there was no electricity supply. The deceased then poured
paraffin on herself, let go of the stove and got hold of matches.
He
quickly grabbed both her hands to disable her from striking the
matches. He then firmly gripped the hand which held the match box,
took away the match box and slipped it into his pocket.
He
said that he asked the deceased as to why she wanted to set herself
alight. The deceased did not respond but returned to sit on the chair
that she had risen from.
After
the deceased sat down, he said that he asked her again as to why she
wanted to sat herself on fire and yet all that he was doing was to
reprimand her, which was something that did not justify her to set
herself on fire.
The
deceased did not respond.
He
said that he tried to telephone the deceased's sisters and aunt but
their phones did not go through. He then sat in his chair for some
time apprehensive that the deceased could do something like burning
herself. He said that he dozed off because he suddenly heard the
sound of a chair moving.
He
saw the deceased take another match box.
This
was about 30 minutes later after dozing off when he woke up to the
sound of a moving chair. He stood up but the deceased lit the matches
and set herself ablaze. She then directed the match box towards the
accused's bossom. The deceased tried to light the matches in order
to set the accused alight but it did not light up.
The
accused said that he was surprised because he thought that the
paraffin was no longer flammable.
The
accused said that he thought about how he could put out the fire. He
wore a nylon t/shirt and could not use it. There was a bed with
blankets next to where the deceased was but he could not use the
blankets because the deceased ran towards him and she appeared as if
she wanted to grab him by the neck. She however held his arm in a
firm grip as she screamed. He said that he suffered some abrasions.
He then said:
“I
realised that the fire intensity had increased and I said lets got to
the tap so that I put out the fire. She went out first. I followed
and said kneel down so that I pour water on you. I then ran some
water over her.”
The
accused said that Miti the first state witness and his wife woke up
as he was by the water tap.
Miti
then said that something was burning and gave the accused a bucket
with water telling him to put out the fire. The accused then noted
that there were clothes burning on the floor and he stamped on the
flames with his feet. He thereafter exited the deceased's room and
found the deceased telling Miti that he, the accused, had set her on
fire.
The
deceased was crying as she narrated her ordeal to Miti.
The
accused said that he then denied burning the deceased and the
deceased kept quiet.
He
said that the deceased only called out to Miti when she was coming
from the tap and not before.
When
asked by his counsel to suggest any reason why the deceased would
have accused him of setting her on fire, the accused responded, “I
think it is because of the way I had spoken to her about her
behaviour.”
Under
cross examination the accused admitted that he heard the deceased
telling Miti that the accused had burnt her. He however said that
this was said after the fire had been extinguished. He also agreed
that the deceased said “why did you not also burn yourself and die
too!” He said that she however was lying and that considering her
state, he saw no useful purpose in denying.
He
said that her utterances pointing him out as her assailant were
intended to fix him.
The
court sought clarifications, on whether the accused saw the place
from where the deceased got the matches which the deceased used. He
said that he suspected that the box must have been by the of corner
table where the deceased sat. The two of them sat 1–2 metres apart.
He said that the deceased was his second wife.
The
above summarised evidence was in the main the accused's trail of
events.
The
court must decide whether on the lotality of the evidence, the state
proved the charge against the accused beyond a reasonable doubt.
Firstly,
commenting on the accused's demeanour, he showed some degree of
annoyance and irritability when giving evidence and answers in cross
examination. The court got the impression that the accused considered
the trial and his being asked to give an account of events as an
unnecessary bother. He appeared not to be a concerned person with the
proceedings yet the victim was his second wife as per
his testimony. The accused's demeanour was adjudged not to be
impressive.
It
is common cause that there was no independent witness to testify as
to how the deceased ended up with the burns. The case falls to be
determined on the basis of circumstantial evidence.
In
this regard the principles set out in the case of R
v Blom (supra)
remain authoritative and continue to be followed in this
jurisdiction.
In
Zacharia
Amons Simango v S
SC42/14 and
Abraham Mbovora v S SC75/14,
the Supreme held the principles in the R
v Blom
case to still hold good in this jurisdiction.
GOWORA
JA in
Simango
case (supra)
stated that there are two cardinal rules which govern the use of
circumstantial evidence in a criminal trial, being,
“(1)
the inference sought to be drawn must be consistent with all the
proven facts.
(2)
The proved facts should be such that they exclude every possible
inference from them save the one to be drawn.”
As
regards the material facts as to what happened at the critical time,
it is not disputed that the deceased suffered paraffin burns
resulting from her being on fire.
The
issue for determination is whether or not the deceased poured
paraffin upon and burnt herself or it was the accused who sat her
alight after pouring paraffin on her.
The
state evidence which was not disputed was that the deceased pointed
out to the accused as the perpetrator who poured paraffin on her and
set her ablaze.
It
is also not disputed that the accused prior to the disputed incident
with regards how it happened had come to the deceased's place in
the early hours of the morning. The accused accosted the deceased on
allegations that the deceased was frequenting bars in his absence and
of infidelity.
Such
accusations involve matters of emotion more so on the part of the
accuser who invariably requires answers and confessions.
If
as the accused alleged, the deceased chose to keep quiet and not deny
the allegations, it is unlikely that the accused would have taken
kindly to this.
The
court reasoned that the discussion between the two could not have
been an amicable one and the accused in fact was in all probability
incensed because he allegedly had evidence of his relatives having
informed him.
The
accused sought to give the court the impression that he was simply
engaged in a mutual and amicable discussion. The court reasoned that
the interrogation of the deceased could not have been and in all
probability was not amicable.
The
conduct of the accused had to be looked at within this background
founded on probabilities.
The
accused's evidence was that the deceased did not respond to the
allegations which he made against him but chose to behave as
described by the accused that is, “she suddenly got up and said I
will set myself on fire.”
Such
reaction and conduct was in the view of the court illogical and
improbable to a point that it can safely be said not to have
happened.
In
fact what the accused seeks the court to accept was a scenario where
the deceased was simply asked as to why she went to bars in the
absence of the accused and she responded by pouring paraffin upon and
setting herself alight.
When
assessing evidence, it is trite that the accused's explanation or
version of evidence should not be rejected for merely being
improbable. It will be rejected only if it is so inherently
improbable that it could not reasonably be said to be true. See
Shusha
v S
[2011] ZASCA 1712.
In
the reasoning of the court, it is inherently improbable that where
parties are involved in a love or marriage relationship and one party
accuses the other party of improper behaviour and infidelity, the
accused party does not answer the allegations but instead suddenly
adopts a dangerous manoeuvre to inflict harm or injury on themselves.
The
inherent improbability in the accused narration of events would need
to be considered together with other proven facts in drawing the
appropriate inference.
The
undisputed evidence of state witnesses was that the deceased named
the accused as the person who had poured paraffin on her and set her
ablaze.
The
complainant was heard screaming and calling out to the neighbours.
She did not call out to the accused person.
If
indeed the deceased had burnt herself and the accused had nothing to
do with it, assuming that she was crying out for help because of
pain, she would have been expected to call out to the person who was
nearest to and in her presence to assist her or come to her aide.
It
was most improbable that the deceased would in the process of seeking
assistance have reached for people far away from her.
The
accused in his warned and cautioned statement stated that he opened
the door whilst the deceased was holding on to him in an embrace and
crying.
The
accused does not appear to have suffered any injury to his person or
damage to his clothing.
He
stated therein at the time that when he opened the door, the fire was
burning heavily.
He
indicated therein that the deceased ran to the tap where she poured
water on herself and that he followed and assisted her to extinguish
the fire.
There
was a variance with his evidence in chief because when he testified,
he said that it was him who suggested to the deceased that they
should go to the tap so that he extinguishes the fire. He further
said that when he followed to the tap, he asked the deceased to kneel
down so that he pours water on her.
The
impression which one gets from the testimony is that the accused went
all out to assist the deceased and even suggested how the fire could
be extinguished. He was on his evidence the savior.
It
then becomes mind boggling that immediately following the accused's
acts of benevolence towards the deceased, the deceased would
immediately turn against her benefactor after being assisted and
accuse him of burning her.
When
a court assesses evidence, it does not treat each individual piece of
evidence as an isolated component. Pieces of evidence constitute a
mosaic of proof. Doubts in relation to one piece of evidence
naturally arises if one picks and chooses to focus on individual
evidential pieces. Doubts may be removed when all pieces of evidence
are considered together taking into account probabilities.
Whilst
the court critically interrogates and subjects each piece of evidence
to examination, it is in the final analysis necessary to then
consider the mosaic as a collective body of evidence. If evidence is
not considered together, the court runs the risk of failing to pick
the wood from the trees.
In
R
v Sibanda
&
Others 1965 (4) SA 241 (R.A). BEADLE
CJ at
246 stated; when dealing with circumstantial evidence as follows;
“The
degree of certainty with which the individual facts must be proved in
criminal cases must always depend on the probative value of the
individual facts themselves. Generally speaking, when a large number
of facts taken together, point to the guilt of an accused, it is not
necessary that each fact should be taken in isolation and its
existence proved beyond a reasonable doubt. It is sufficient if there
are reasonable ground for taking these facts into consideration and
all the facts, taken together prove the guilt of an accused beyond a
reasonable doubt.”
In
S v Chabalala 2003 (1) SACR 134 (SCA) at para 15, it is stated,
“---The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and
having done so, to decide whether the balance weighs so heavily in
favour of the state as to exclude any reasonable doubt about the
accused's guilt.
The
result may prove that one scrap of evidence or one defect in the case
for either party (such as the failure to call a material witness
concerning an identification parade) was decisive but that can only
be an ex-post facto determination and a trial court (and counsel)
should avoid the temptation to latch on to one (apparently) obvious
aspect without assessing it within the context of the full picture
presented in evidence.
Once
that approach is applied to the evidence in the present matter, the
solution becomes clear.”
The
upshot of the dicta in the above cases is that the court should
always approach the assessment of evidence holistically and not neat
pick aspects or components of evidence without relating them. It is
the totality of the evidence which must be considered and a founding
of guilt or innocence should not be based upon a consideration of
facts treated in isolation but collectively.
In
casu,
the only factors indicative of the accused's innocence were his
denial that it was not him who had committed the felony when the
deceased pointed him out. He did not deny that the accusation against
him was made.
There
would appear to have been no logical reason for the deceased to have
named the accused and attributed the pouring of paraffin and lighting
of the deceased to the accused. The reasoning of the court in this
regard has been explained.
Had
the deceased awoken to find herself on fire, she would in all
probability have suspected the accused as he was the only person in
the room. However, in
casu,
the
events took place when the deceased was awake and there would on the
proven facts have been no compelling reason for the deceased to
attempt a suicide and attribute the act to the accused.
Counsel
have raised the question of res
gestae
and
argued that the evidential facts disqualify the application of the
doctrine.
The
defence counsel argued that there was no spontaneity in the
deceased's exclamation pointing out to the accused as the
assailant. For his part the state counsel in his closing submissions
indicated that he stood by his submissions in which he had earlier
conceded to the defence application for discharge.
The
court found the state's approach to be wholly unhelpful.
The
state counsel did not even comment on the defence evidence and the
probabilities.
It
goes without saying then that the court does not agree with the
veiled concession by the state that the state evidence was inadequate
to support the charge.
The
unfortunate attitude adopted by the state counsel appeared to be that
of saying “I have already made up my mind that the state has not
proved a prima
facie
case. The court can proceed to make a contrary determination if it
wishes.”
Such
attitude and approach is improper.
Counsel
needed to address the further evidence adduced after the dismissal of
the application for discharge of the accused.
Res
gestae
should
be applied taking into account the circumstances of each case.
In
casu,
the
undisputed evidence was that the deceased screamed out and footsteps
were heard proceeding to the tap and immediately on returning from
the tap, the deceased made the accusation that the cause of the
fiasco was the accused.
To
hold as argued by the defence, that the deceased should have
exclaimed that the accused (by name) had burnt her at the time of the
burning would be to adopt an armchair approach. The deceased named
the accused at the first opportune time after she was no longer on
fire. It cannot be said that there was no spontaneity in the
exclamation.
The
court has already dealt with the issue of the absence of the post
mortem report.
The
issues in the case were not that the deceased could have met her
death through other causes. The issue was whether the accused is the
one who poured paraffin on the deceased and set her ablaze resulting
in injuries from which the deceased died.
In
such a case, a post mortem would simply be there to give credence to
the admitted fact and its absence is not therefore fatal to the state
case.
Having
considered all the evidence holistically and properly guided by case
law on the approach to dealing with circumstantial evidence, the
court determined that the only reasonable inference to be drawn on
the evidence was that of the guilt of the accused.
The
court determined that it was the accused who set the deceased ablaze
after pouring paraffin on her and that when he did so, he foresaw or
realized a real risk or possibility that his conduct may cause death
and continued in that conduct regardless.
The
accused is therefore found guilty as charged under s47(1)(b) of the
Criminal Law Codification & Reform Act [Chapter
9:23].
That is, murder with constructive intent.
SENTENCE
Counsel
addressed the court in mitigation and aggravation.
None
of them made submissions in respect to whether or not the accused
committed the murder in aggravating circumstances.
The
court following a conviction for murder must make a determination as
to whether or not the murder was committed in aggravating
circumstances.
Such
circumstances without limitation of other factors which the court may
take into account as constituting aggravating circumstances are set
out in s47(2) of the Criminal Law (Codification and Reform) Act,
[Chapter
9:23].
None
of the factors were present in this case and neither did the court
consider that there were other factors present which could be
classified as aggravating circumstances for purposes of applying the
provisions of s47(2) as aforesaid.
It
is not necessary to cite ex
tenso
the provisions of s47(2) and it suffices to incorporate them by
reference, they having been considered and found absent on the facts
found proved.
The
importance of making a finding on the presence or absence of
aggravating circumstances following a conviction for murder is
twofold.
(i)
Firstly, it enables the court to properly exercise its discretion
whether or not to impose the death sentence. The death sentence can
only be imposed in the court's discretion in circumstances where a
murder is committed in aggravating circumstances.
The
provisions of s337(1) of the Criminal Procedure and Evidence Act are
instructive.
Where
aggravating circumstances are not present, the death penalty cannot
be imposed but imprisonment for life or “any sentence other than
the death penalty.”
The
“any other penalty” must be interpreted taking into account the
provisions of s47(4)(b) of the Criminal Law Codification and Reform
Act which provides that where a murder is committed in the absence of
aggravating circumstances the court is obliged to impose a sentence
of imprisonment for any “definite period.”
(ii)
Secondly, the importance of the court making a finding on the
presence or absence of aggravating circumstances arises from the fact
that s47(4)(a) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23]
provides for the imposition of a minimum sentence of 20 years upon an
offender convicted of murder committed in aggravating circumstances
where the court in the exercise of its discretion is disinclined or
not disposed to impose the death penalty.
The
court enquired of both state and defence counsels as to whether by
not addressing the issue of whether the murder was committed in
aggravating circumstances, they were agreed that there were no
aggravating circumstances as envisaged in s47(2).
Counsel
had apparently not been aware of the provisions of s47(2) and had
thus not addressed the court on the issue.
The
court referred counsel to s47(2) and after going through its
provisions, state counsel conceded that he could not advance any
argument for a finding that the murder was committed in aggravating
circumstances for the purposes of s47(2) aforesaid.
As
already indicated, the concession coincided with the prima
facie
observation of the court on the absence of aggravating circumstances
in the commission of the murder.
The
court will therefore determine the appropriate sentence on the basis
that it is at large subject to the provisions of s47(4)(b) of the
Criminal Law Codification and Reform Act, to impose a sentence of
imprisonment upon the accused of such length as it considers
appropriate taking into account the objective circumstances
surrounding the commission of the offence and balancing them with the
accused's personal circumstances and the interests of society.
The
interests of Society require that the provisions of chapter 4
(Declaration of Rights) of the constitution should be upheld. Section
44 of the Constitution reads as follows;
“44
Duty
to respect fundamental human rights and freedoms
The
State
and every person including juristic persons, and every institution
and agency of the government at every level must respect, protect,
promote and fulfil the rights and freedoms set out in this chapter.”
The
right to life is a fundamental human right and the court as an agency
of government must give effect to s44 when imposing sentence upon an
offender convicted of murder or violating another's person's
right to life as set out in s48 of the Constitution.
Although
this case was committed in 2011 before the promulgation of the
present 2013 constitution, nothing turns on this because the
determining period in terms of s48 of the current constitution is the
time of sentence.
Even
if argument were to be raised to the contrary, and barring further
arguments which could arise as a result of the savings and
transitional provisions of the constitution in s18 of the 6th
Schedule, on the applicability of this constitution to cases
committed before the constitution came into office, the position of
the accused would not be any better since under the previous
constitution, not only was the right to life classified as a
fundamental human right, but legislation then in force made the
imposition of a death penalty for murder mandatory in the absence of
extenuating circumstances.
The
above said, what is not debatable is that societal interests call
upon the courts to impose sentences in murder cases, which emphasize
society's abhorrence for persons who commit murder.
Sentences
imposed for murder must send a clear message to the accused and would
be offenders that the sanctity of human life should be held
sacrosanct.
Whilst
human rights are indivisible and interdependent, the right to life
must rank as the mother of all human rights because without
respecting and promoting it, society is decimated and without
society, there can be no human rights to enjoy, protect, promote or
fulfil.
The
accused therefore committed a very serious offence in that it
deprived society of one of its members.
It
must go without argument and as property conceded by both counsel
that the offence committed by the accused is of serious proportions.
Despite
the acceptance of the seriousness of the offence and the finding that
societal interests must take centre stage in sentencing an offender
for the offence of murder, a court should not be retributive.
The
remarks of HOLMES
JA
in S
v Rabie
1975 (4) SA 855 at 861-2 should always be embraced by every
sentencer.
The
learned judge reminded every sentencer of the importance of being
fair to both the convict and society. He emphasised that justice
included the element of mercy and that the latter was the hallmark of
a civilised society and enlightened criminal justice system.
Corbett
JA in the same judgment at page 866 stated;
“A
judicial officer should not approach punishment in a spirit of anger
because being human, that will make it difficult for him to achieve
that delicate balance between the crime, the criminal and the
interests of society which has task and the objects of punishment
demand of him. Nor should he strive after severity, nor, on the other
hand, surrender himself to misplaced pity. Whilst not flinching from
firmness where firmness is called for, he should approach his task
with a humane and compassionate understanding of human frailties and
the pressures of society which contribute to criminality.
It
is in the context of this attitude of mind that l see mercy as an
element in the determination of the appropriate punishment in the
light of all the circumstances of the particular case.”
I
must at once say that I defer to the dicta by the learned judgement
as they commend themselves as pointedly very instructive and
jurisprudentially beyond reproach.
The
court will be guided accordingly.
Following
on the court's embrace of the above approach, it must follow as
stated in S
v Zinn
1969 1969 (2) SA 537 (A) that in assessing sentence the court must
have regard to the offender, the offence and the interests of society
in the imposition of an appropriate sentence. So far as l stand
informed of the court's approach to sentence in this jurisdiction,
the approach in the quoted cases relate with the Zimbabwean
approaches and indeed with sentencing trends in other jurisdictions
where the court exercises a discretion on what sentence to impose for
the specified offence.
The
accused is a married and mature adult aged 56 years old. He would
have been 49 years when the offence was committed. 49 years would
still classify him as a mature adult.
He
committed a crime of passion in that he suspected the deceased to be
promiscuous and that she frequented bars.
At
his age, the accused would have been expected to hold his emotions in
check and not resorted to violence.
His
behaviour betrayed his deemed maturity and expected measured approach
to dealing with such problems. Society does not expect mature adult
to lose their heads and act irrationally when resolving disputes.
The
deceased suffered a lot of pain as evidenced by the burn degrees
which were assessed initially at 35% and then 76%.
The
burns were so serious that the local district hospital at Chivhu
could not treat them and referred the victim to Harare Central
Hospital.
The
burns were life threatening and as the court found, it was not
disputed in evidence that the victim died from the burn injuries as
charged in the indictment.
The
use of paraffin and setting the deceased ablaze was clearly an act of
barbarism.
The
purpose of burning something is to destroy it or change its state.
This
is why the court ruled that the accused must have appreciated and did
foresee the risk of serious injury or death resulting from the use of
paraffin and setting the deceased ablaze.
Many
a time the courts have encouraged in their judgments that domestic
disputes should be solved amicably. This can be achieved firstly by
embracing and respecting each other's rights to privacy and dignity
and talking over problems instead of using the rod to instil
discipline in the other spouse.
The
use of violence by one spouse on another cannot be a panacea to
fixing a problem or dispute. Dialogue should be the route to follow.
The
behaviour of the accused did not only cost a life but has created
animosities within the family of the deceased and his own with the
former now looking upon the accused as a murderer.
The
death of a human being is not a small matter which can be brushed
under the carpet.
The
accused himself will forever live in regret carrying the stigma of a
murderer. This is a form of punishment. It amounts to psychological
torture that will eternally torment him for life.
In
his submissions in mitigation, the defence counsel referred to
several cases in this jurisdiction dealing with sentence for murder
committed with constructive intent.
The
cases predate the promulgation of the 2013 constitution.
What
was referred to then as constructive intent would more or less equate
to what is envisaged in s47(1)(b) as read with s15 which defines
“realisation of a real risk or possibility as an element of a crime
and s17 which sets out the test for the quoted phrase, of the
Criminal Law Codification and Reform.
Constructive
intent in a sense is the antithesis or converse of actual intent in
that a person is said to have constructive intent where he committed
an act in circumstances where he foresaw the risk or possibility of
the end result as an eventuality and proceeded with his or her
conduct regardless.
The
cases which counsel cited including S
v Mukome,
2008 (1) ZLR 314, S
v Ncube
SC149/2004, S
v Scluli
HH146/2004 and S
v Madzima
SC70/2001 and S
v Moyo
HB26/20 were all distinguishable on the facts from the case in casu.
In
S
v Shavi
HB124/17, MAKONESE J emphasised that courts should not condone the
use of violence as a means of resolving domestic disputes.
The
accused in that case murdered his wife following a domestic dispute.
The accused struck the deceased on the head several times as she lay
on the bed. He fled the scene without rendering assistance. A
sentence of 20 years imprisonment was imposed.
Other
than adding the court's voice to that of MAKONESE J for parties not
to resort to violence in settling domestic disputes, the court is not
persuaded to impose a similar sentence herein because the facts are
different.
The
accused, in
casu,
denied committing the offence and thus was not remorseful for his
conduct.
The
court was not placed in a position because of the denial to determine
the proximate cause for the accused's reaction. This is not to say
that accused should have admitted committing the offence. It was his
constitutional right to plead the denial and no adverse inference
should be drawn from the denial.
The
point made is that where the accused denies committing the offence
charged but the court convicts, it becomes difficult for the accused
to turn around and adduce mitigating facts connected with the
commission of the offence. Equally, the court has no facts connected
with the commission of the offence as would mitigate the accused's
conduct in explaining the rationale for this conduct.
As
regards individual deterrence, there was no evidence led to suggest
that the accused is of a violent disposition.
He
is a first offender.
There
is therefore on his past no evidence of propensity or disposition to
commission of crimes.
As
regards general deterrence, it has already been noted that the courts
must shun and deprecate domestic violence. Sentences for crimes which
arise from domestic violence must be severely punished, as a mark of
society's abhorrence for such crimes.
Engaging
in love relationships and marriages should cease to be looked upon as
an antecedent of domestic violence. The relationships should not be
considered as a licence for couples to engage in acts of violence or
abuse of each other or their families.
In
the case of the accused, he and other like-minded people must
understand that the exercise of marital power, to the extent that it
may still exist in regard to other facets of life, does not extend to
committing acts of violence over those over whom the accused and
other like-minded persons may consider they are entitled to exercise
marital power over them.
A
factor which weighs heavily in favour of the accused is the prima
facie
unreasonable delay in bringing this case to trial.
The
defence counsel did not invoke the provisions of s167A of the
Criminal Procedure and Evidence Act for the court to enquire on the
delay.
Be
that as it may, the issue was raised in mitigation.
It
was submitted on the accused's behalf that from the time that the
accused was arrested on 23 October 2011, he availed himself to stand
trial.
A
delay of 7 years in bringing an arrested person to trial is prima
facie
unreasonable unless properly justified by the state.
Defence
counsel submitted that on no less than 3 previous occasions, the
accused had been committed for trial with the trial being aborted for
no fault of the accused.
The
law provides for criminal trials to be held within a reasonable
period and where there has been an unreasonable delay in the
completion of the criminal proceedings, such factor should be
considered as a mitigating factor in assessing sentence.
The
state counsel did not deny that the delayed trial was not due to the
conduct or fault of the accused. The fault was with the state whose
house was not in order. The delay in this matter is therefore a
factor of weighty mitigation.
Another
point requiring comment was the suggestion or submission by defence
counsel that the accused be sentenced to a term of imprisonment with
a portion thereof suspended.
Both
sections 47(4)(b) of the Criminal Law Codification and Reform Act and
s337 of the Criminal Procedure and Evidence Act, which are the
applicable sections informing sentence in this case in view of the
verdict reached, are clear that the death sentence aside, the accused
must be sentenced to a definite term of imprisonment for the offence
of murder.
Section
358 of the Criminal Procedure and Evidence Act is the one which
empowers the court to suspend a portion of sentence imposed on an
offender on appropriate conditions.
The
power to suspend the whole or a portion of a sentence does not apply
to 8th
Schedule offences and murder in regard to which the conviction in
this case relates is classified as an 8th
Schedule offence.
Resultantly
counsel's prayer cannot be granted as it not sanctioned by law.
In
conclusion, general deterrence must be taken as the prime
consideration taken together with other factors in this matter.
There
is a clear unlikelihood that the accused will repeat the same
offence. Individual deterrence is therefore not of much weight other
than looked at from the retributive perspective that the accused
should feel the pain of punishment for his transgression.
General
deterrence should be the core value of society in matters of
violence.
The
interests of society will not be served by too harsh a sentence
inasmuch as they will not be served by too lenient a sentence. A
proper balance must be struck using the triad approach set out in
Zim's
case (supra).
Bearing
in mind and guided by the principle that each case should be decided
on its own facts and circumstances, a sentence in the region of 18
years imprisonment would have been appropriate but for the delay in
bringing the accused to trial.
The
effect of the delay has been such as to persuade the court that a
lesser sentence than the 18 years would meet the justice of the case.
The following sentence is therefore imposed:
13
years imprisonment.
National
Prosecuting Authority,
State's legal practitioners
Rubaya
& Chatambudz,
accused's legal practitioners
