Criminal
Trial
KAMOCHA
J:
The
22 years old female accused told the court on arraignment that she
admitted causing the death of a 10 months old baby but did not intend
to kill him.
The
allegation was that on 1 February, 2013 and at house number 13889
Cowdray Park, Bulawayo, she did wrongfully, unlawfully and
intentionally kill and murder Ethan Mthabisi Phiri a male infant in
his lifetime therebeing by suffocating him in a closed linen cabinet.
A
plea of not guilty was entered as the accused said she lacked the
requisite mens
rea
when she caused the death.
A
list of exhibits was read and produced in court.
The
first exhibit was the state outline followed by the defence outline
which was marked as exhibit 2. In it the accused maintained that she
lacked the requisite mens
rea
when she caused the death of the infant as she had not intended to
terminate his life.
She
explained that by placing the infant in the linen cabinet her
intention was to muffle the child's cries in order that the infant
could not be heard crying by the neighbours.
She
acknowledged that her actions were grossly negligent and that she was
genuinely contrite for the suffering she had caused to the deceased
and his parents.
She
then prayed that she be found not guilty of the charge of murder.
Exhibit
3 was the accused's confirmed extra curial statement. It gives the
details of what transpired and reads as follows:
“My
name is Violet Moyo am 20 years old and I was working at house number
13889 Cowdray Park minding a 10 months old baby. It was on a Friday
morning when I was left with the child without any serious problem
but had flu only. I gave the child porridge at around 07:35 and the
child slept and woke up for the second time at around 11:00 hours and
gave him porridge for the second time and after he finished eating he
started crying. I tried to find the reason why he was crying but I
could not get the reason.
I
got possessed by an evil spirit and laid the child in a cupboard and
covered the child with a blanket and closed it and went to the
sitting room and watched T.V. forgot about where the child was since
my conscience was telling me that the child was grown up.
I
panicked, I thought of the child.
I
remembered where I had placed the child. I got into the bedroom and
opened where I had laid it and found it dead.
The
child died in a manner which I was not expecting since I had no
intention to do that but I was thinking that the child would stop
crying and sleep.
Due
to the shock I was in, I then had courage of taking the child and
laid it between the bed and headboard with the intention to purport
that the child had fallen off.
Later
I got into my sound senses and regretted what I had done and told
them the whole truth.
I
was afraid to tell them the truth soon after the incident since I was
confused and could not understand what happened. I said to myself I
would tell them when it was over. This is what happened.” Emphasis
added.
Exhibit
4 was an affidavit by Constable Isaac Jacob who identified the body
to Dr S. Pesanayi who examined the remains of the deceased and
compiled exhibit 5 the post mortem report in which he concluded that
death was due to -
(a)
asphyxia;
(b)
broncho aspiration.
The
doctor further remarked that the post mortem was consistent with
asphyxia secondary to broncho aspiration.
Exhibit
6(a) (b) (c) and (d) were photographs of indications made by the
accused to Assistant Inspector Gwenya.
The
indications were made freely and voluntarily without any undue
pressure being brought to bear on the accused.
Exhibit
6(a) is a photograph of the headboard drawer or linen cabinet into
which the accused placed the deceased.
6(b)
indicates a 2 in 1 blanket into which the accused wrapped the
deceased before placing him into the headboard cabinet.
The
blanket was wrapped as if it had something inside – shaped like it
had a small child in it.
6(c)
indicates the opened headboard cabinet which had another blanket in
it. Blankets are normally kept in that cabinet.
6(d)
indicates a space between the bed and headboard where accused had
placed the deceased and alleged he had fallen.
The
state led evidence from two witnesses. Their evidence was not
challenged under cross examination and was therefore common cause.
Assistant
Inspector Gwenya's evidence was that the accused had covered the
deceased's head with the two in 1 blanket. That was narrated by
accused as she wrapped the blanket in 6(b). That was also confirmed
by the accused herself in her evidence.
Faith
Natasha Mlalazi whose parents own the house where deceased's
parents were tenants narrated in detail what took place on the
fateful day.
She
had seen the baby playing in the morning. At around 12 noon she had
asked the accused where the baby was but the accused lied to her that
he was sleeping when she had already wrapped him with a heavy blanket
and placed him in the headboard cupboard.
At
around 3pm the accused who appeared to be in a panic mode called her
and lied that the baby had fallen.
She
went with accused into the bedroom where she found the baby trapped
between the headboard and bed.
Accused
said he had fallen in that position.
Natasha
said that did not make sense as the head of the baby was in between
the bed and headboard. His feet and torso were out.
The
accused said she is the one who had put him there so as to create an
impression that he had fallen.
Her
plan to deceive was clumsy and could not deceive Natasha.
The
evidence of the rest of the witnesses listed on the state outline was
admitted by consent as it appears in the state outline in terms of
section 314 of the Code.
The
accused gave viva
voce
evidence and repeated her confessions contained in the confirmed
extra curial statement.
She
at one stage sought to make some variations which she abandoned under
cross examination and did not want to persist with them.
She
had suggested that she had left a space to allow air into the linen
cabinet. She also wanted to change her story and said she had covered
the baby with a towel not a two in one blanket.
The
attempt to change was a feeble one because she quickly apologised and
said the alterations were not persisted with.
The
correct position was that she had wrapped the 10 month old infant
into a two in one blanket. She had completely covered him from head
to toe. The baby could not unwrap himself. Having done so she placed
the baby like a parcel into the linen cabinet and closed it. She
admitted under cross examination that she appreciated that a person
needs air to breathe in order to survive. She appreciated that by
wrapping him in that heavy blanket she would starve him of the air.
As if that was not enough she put him in a linen cabinet with very
limited circulation of air.
One
would not be too far off the mark in entertaining the idea that she
wanted to make sure that the baby died.
When
she wrapped the child she admitted that she could hear a cry of
distress and yet she still placed him in the linen cabinet for a
period of nearly 3 hours without checking to see what was happening
to him in that condition.
It
admits of no doubt that by wrapping a 10 months old infant from head
to toe in a heavy blanket and further placing him in a linen cabinet
which has a limited circulation of air death was substantially
certain.
I
propose to find the accused guilty of murder with actual intent.
Sentence
The
defence and state counsel have summerised all that needed to be said
for and against accused.
She
would indeed have been sent to no less than 30 years imprisonment if
she was not a young woman first offender with a small baby.
Her
actions were brutal.
She
killed the deceased in a cruel and most painful manner. Indeed
stories about domestic workers committing all sorts of crimes at
their places of work are on the increase. Young couples have endless
problems from their child minders. Despite the fact that such crimes
are widely reported in the media the miscreants do not seem to be
deterred. Time has come for adequate and deterrent sentences to be
imposed.
The
deceased lost his life at a very early age. This court will always
guard jealously the sanctity of life.
In
the circumstances the justice of this case will be met by a sentence
of twenty-two years imprisonment.
Prosecutor
General's Office,
State counsel
Mazvuzvu
& Mguni,
Defence counsel