THE State V Malvin Gohwa

### Preamble
1
HB 146.20
HC (CRB) 61/20
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THE STATE

Versus

MALVIN GOHWA

HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr O Dewa and Mr M Ndlovu

BULAWAYO 2 AND 3 JUNE 2020

Criminal Trial

Ms S Ndlovu, for the state

Miss M N Sibanda, for the accused

MOYO J: 	The accused faces a charge of murder, it being alleged that on the 17th of February 2012 and at 14 Heath fields Crescent Northend, the accused person and another stabbed Michael Jongi with knives several times on the back intending to kill him or realising that there is a real risk or possibility that his conduct may cause the death of the now deceased but however, he continued to engage in that conduct despite the risk or possibility.

The state summary, the defence outline and the post mortem report were admitted into the court record and were duly marked.

The evidence of

Vicinia Chakaipa

Garikayi Manyera

Lucas Nyika

Tirivamwe Matsika

Nicholas Sibanda and Doctor S Pesanai

was admitted into the court record as it appears in the state summary in accordance with the law.

Three witnesses gave viva voce evidence for the state.  The 1st witness was Nolyn Roberts who told the court that she knew accused person as she saw him at Bulawayo Central

Police Station as accused came to the office where she was and pointed to a guy who was in the office saying he is the one who had killed the deceased.  She said accused came running into the office and said “I am here to report this man, he killed his father last night.”  She said accused did not elaborate further as the police ordered him to sit down and he was then taken to the next office.  She said the office was small so she could hear what accused was saying as they were close.  Asked during cross-examination if accused narrated what happened, the witness said that accused said this man stabbed his father to death last night.  Those were the material respects of this witness’s testimony.

Next to testify was Flora Moyo who told the court that she is an aunt to the accused.  She told the court that accused came to her office at her workplace looking weird and troubled.  She said accused also started crying.  She asked him what was wrong and accused then told her that his (accused’s) friend had killed his father like an animal and that he requested that the aunt accompanies him to the police station as he wanted to go and make a report.  The witness was frightened and she called her workmate one Trymore Mubwanda and asked him to accompany the accused to the police.  She said that accused did not explain how deceased was killed but just that he had been killed like an animal.  Asked under cross-examination if accused had said he was present during the ordeal, the witness replied saying that what accsused told her was that his friend killed his father like an animal.  Asked further if accused never told her if he was present she then said what accused said to her implied that he was present.  She further confirmed that she inferred accused’s presence just from what accused had said.  She confirmed that accused told her that he wanted to go to the police and report a crime that his friend had committed.  Those were the material respects of this witness’s testimony.

Next to testify was Trymore Mubwanda.  He told the court that he used to work with accused’s aunt and that accused came and told him that he witnessed his friend murdering his uncle. That he wanted someone to accompany him to the police to report.  When they went to Bulawayo Central Police Station, they then found the other accused called Mbonisi.  The accused then pointed at Mbonisi and said that is the guy I was talking about.  The witness further said accused just said Mbonisi killed his uncle using a knife but that he did not say how.  He said the accused said he was present at the scene when this happened.  Asked that accused said he was told but he was never there, the witness said due to lapse of time some things he may have forgotten.  Pressed further to comment on this aspect of his evidence he said that he had no comment.  Asked under cross-examination if it was not accused’s aunt who asked him to accompany the accused to the police station he said due to lapse of time he could forget what happened but accused also told him.  Asked again if it was not the aunt who requested him to accompany accused to the police station, he said that he had forgotten.  Asked if accused’s narration was that his friend had murdered his father, he answered in the affirmative.  He confirmed during cross-examination that because of lapse of time he had forgotten some of the details.  Asked if accused told him that he was directly present, at the scene he said accused said that he witnessed so maybe he was present.  He said accused said he witnessed.  Asked how he remembered this aspect he said the summary and the subpoena refreshed his memory but he could not remember everything.  Those were the material respects of this witness’s testimony.

The state then closed its case.  The defence counsel then applied for a discharge at the close of the state case in terms of section 198 (3) of the Criminal Procedure and Evidence Act Chapter 9:07 which provides thus:-

“If at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment, summary or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of Not Guilty.”

The basis of the application made was that there is no prima facie case against the accused and that none of the essential elements of the offence of murder or any other offence were established against the accused.

The state counsel submitted that a case was made against the accused person and that he told Trymore that he witnessed the crime meaning he was actually present.  That accused would not look troubled to his aunt if he had not witnessed anything and that he must explain the time differences as deceased was allegedly murdered at about 2 am and at 6.30 am the body was discovered with Mbonisi being arrested at about 10 am.  The state counsel also submitted that accused must explain about the unknown lady who allegedly informed him about the issue and that he should also explain the emotions he displayed.

It is trite that when considering whether to discharge an accused at the close of the state case, the judicial officer must consider whether the state has made out a prima facie case against him.  In the case of State v Tsvangirai and Others HH 119-03 the judge stated that the court shall return a verdict of Not Guilty if at the close of the state case the court considers that there is no evidence that the accused committed the offence charged (or any other).  Thus the court must discharge at the close of the state case where there is no evidence to prove an essential element of the offence, or there is no evidence on which a reasonable court acting carefully might properly convict, or the evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely act on it.

In this case, the accused faces a charge of murder, and the essential elements of such a charge is that;

He killed a human being.

That he intended to kill the human being.

That even if he might not have intended to kill the human being, he foresaw death as a real possibility from his actions but nonetheless continued.

From Nolyn Robert’s evidence we are not told that accused killed the deceased, how and when.  Neither are we given any facts upon which to infer that he killed the deceased.  Neither do we have from her testimony evidence that could lead him to be convicted of a competent verdict.

From Flora Moyo’s evidence, we are not told that accused killed the deceased, how and when.  We are also not given through her testimony any facts upon which this can be inferred reasonably.  All she says is that what accused said to her implied that he was present at the scene.  She has however not given the court any detail that can lead this court to make such an inference.  Her evidence thus falls short of the required standard to establish a prima facie case as it does not establish any of the essential elements.  The accused’s state when he arrived at his aunt’s office, does not establish anything as there are many inferences that can be drawn from it.  In any event, even if accused had said he witnessed the killing, witnessing a killing and murdering a deceased are two different things.  Still, the state would have a duty to establish a prima facie case against him that removes him from the witnesses category to the co-accused category.  Evidence must have been led that first, he was present at the scene and in what capacity he was present, whether as an accomplice or accessory after the fact or as a principal offender.  Where no evidence has been led as in this case nobody can draw an inference that he was present when he says he was not.

The evidence of Trymore Mubwanda is also of no use to this court as it does not establish any essential element of the crime of murder or a verdict against the accused person because all he says is that accused asked him to accompany him to the police to report Mbonisi as being the murderer.  The witness prevaricated between whether accused said he witnessed the incident as a matter of fact or whether he inferred this.  He then says he could not remember some facts and that some he refreshed his memory from the state summary.  Even if it were to be taken for argument’s sake that accused witnessed the killing, how then does he become criminally liable when no evidence has been led at all that he murdered the deceased? or that he acted as an accomplice or accessory after the fact?.  If someone is present at a scene of crime, with absolutely no facts linking him to the commission of the offence, he just becomes criminally liable with no factual basis?.  What would be the factual basis for accused’s criminal liability?  For from the 3 witnesses’ accounts there is absolutely nothing.  Evidence must have been led that indeed as a matter of fact accused was present at the scene of crime.  Or that accused factually acted in a certain way in killing the deceased.  We need evidence on accused’s actions on the night in question or evidence that links him to the commission of the offence even without actual actions.  For instance, if he had been found in possession of deceased’s belongings with no reasonable explanation.  For instance, if there were several facts, which even without being direct, would lead the court to draw inferences on accused’s presence, and actions on the night in question.

The state case is that on 17 February 2012 at about 2 am, the accused and his co-accused Mbonisi Mkandla who is mentally challenged hatched a plan to kill the now deceased and take away his motor vehicle.  The accused and his co-accused Mbonisi Mkandla then armed themselves with a knife and machete.  They proceeded to deceased’s bedroom where they found him asleep in the company of an unknown female.  They stabbed him several times on the back and he died on the spot.  They wrapped his body, bungled it into his motor vehicle and dumped it near the intersection of Airport Road and Fiere Road in Queenspark West.  That accused was haunted by the killing of the deceased and he surrendered himself to police at Bulawayo Central.  No witness ever led evidence to sustain these facts at all.  Both the witnesses who gave viva voce evidence and the ones whose evidence is admitted as it appears in the state summary, do not tell this story.

One wonders from which facts the state summary was drawn.  It seems it was drawn from facts not before this court.  There are not even any facts from which an inference can be drawn as stated in the state summary from the witness testimony.  The story as told by the accused person is that he told his aunt, Mr Mubwanda, Nolyn and the police, that he wanted to report his friend who had killed his uncle.  There is nowhere in the evidence before us where accused surrendered himself to the police as an accused.  From all the witnesses, accused said he wanted to make a report.  He never said that he had killed a person and wanted to surrender himself to the police as alleged in the state summary.

I thus find that no evidence has been led to establish the essential elements of the crime with which accused is charged or any other competent verdict.  I also find that no evidence at all has been led to establish any points upon which a reasonable inference, being the only inference, could be drawn to establish the guilt of the accused.  I further find that there is absolutely no evidence adduced by the state calling upon the accused to rebut it, for if such evidence were present it would call for accused’s answer.  Accused cannot be put on his defence to answer a non existent state case so that perhaps in the process he may fail to explain certain aspects of his defence and then bolster the state case.

Our criminal justice system does not allow that an accused be put on his defence to assist the state in fumbling just in case they may strike some evidence from his narrative.  That would be a misdirection if the state has failed to lay a prima facie case against an accused, then he must be set free.  He cannot be .put on his defence to answer questions where his criminal liability has not been established albeit on a prima facie basis.  In other words, the state must first establish criminal liability on an accused on a prima facie basis before he is put on his defence to explain himself.  Where no criminal liability has been established factually, and where none can be reasonably inferred from the facts circumstantially, then an accused should be rightfully discharged.

It is for these reasons that the application for discharge at the close of the state case succeeds and the accused person is accordingly found not guilty and is acquitted.

National Prosecuting Authority, applicant’s legal practitioners

Vundhla-Phulu and Associates, accused’s legal practitioners