THE State V Stanley Muleya

### Preamble
1
HB 109/19
HC (CRB) 57/19
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THE STATE

Versus

STANLEY MULEYA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr J. Sobantu & Mr T.E. Ndlovu

HWANGE CIRCUIT COURT 1 & 2 JULY 2019

Criminal Trial

Ms M. Munsaka for the state

C. Muleza for the accused

MAKONESE J:	The accused appears in this court facing a charge of murder.  The allegations being that on 11th February 2019, the accused struck and killed Madamombe Mudenda by striking him once with an axe on the neck thereby causing his death.  The accused pleaded not guilty to the charge and proffered the defence of self defence.

The brief circumstances of the case are set out in the outline of the state case which now forms part of the record.  The bulk of the facts are common cause and not in dispute.  On the day in question and at around 1800 hours the accused and Andrew Muleya were seated outside Andrew Muleya’s homestead at Siansulu 11, Kariangwe, Binga.  The deceased arrived at Andrew Muleya’s homestead looking for his lost cattle.  The accused and the deceased exchanged harsh words.  Accused then uttered words to the effect that, “Get away from here.  I am not the one who bewitched you.  You failed to sleep with your mother to become a traditional healer.”  The deceased momentarily left the scene, and was going away when, suddenly he returned and struck the accused with a stick on the shoulder.  The accused’s reaction was swift.  He picked up a home-made axe and struck the deceased behind the neck.  The deceased sustained a deep  and  penetrating cut and fell to the ground.  The deceased failed to get up and died from the injuries sustained in the attack.  The accused subsequently handed himself to the police and was arrested on murder allegations.

In his defence outline the accused confirms that on the fateful day he was at Andrew Muleya’s homestead.  A misunderstanding between him and the deceased ensued when he told the deceased that he did not own any cattle and that in any event, he would not find the cattle since the sun was setting.  The accused avers that the deceased insulted him by saying “futseki”.  Accused stated that at that stage he told the deceased in the Tonga language that “Get away from here.  I am not the one who bewitched you.  You failed to sleep with your mother to become a traditional healer.”  The accused alleges that the deceased had told him he was not his age-mate.  The deceased who was carrying a stick stood up, walked a few metres and insulted the accused.  Accused states that he was looking down as he was using Andrew Muleya’s cellphone.  When accused looked up he saw deceased who was about 3 metres away charging towards him and wielding a stick.  The accused avers that the deceased struck him once with the stick on the left shoulder.  Accused contends that as he stood up and in fear of being gravely injured, picked up an axe which was on the ground and beside him and swung it towards the deceased.  The accused states that he struck the deceased once on the left side of the neck with the axe in a bid to defend himself.  The accused avers that he had no intention to cause the death of the deceased and prayed for his acquittal.

The state tendered a post mortem report prepared by Dr Roberto Lara Diaz, a forensic pathologist, following an examination of the remains of the deceased.  The report filed under report number 150-155-2019 lists the cause of death as:

Hypovolemic shock

Injury on the vessels of the neck

Chop wound (axe)

On marks of violence the pathologist observed a deep wound on the left side of the neck measuring 9 x 1cm.  On other remarks, the pathologist noted that the wound described in the report showed and revealed injuries on the vessels of the neck.

A confirmed warned and cautioned statement recorded from the accused on the 12th February 2019 is in the following terms:

“I admit to the allegation against me of chopping Mudenda Madamombe with an axe, however he is the one who assaulted me first.  I did not do it deliberately.”

A stick and an axe were tendered as exhibits by the state.  The axe weighs 700 grammes.  The length of the wooden handle is 60cm.  The circumference of the wooden handle on the widest part is 8cm.  The length of the blade is 9.5cm.  The width of blade is 8cm.  The axe is notably a home-made axe.  It is a lethal weapon.

The state sought and obtained formal submissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The evidence of the under listed witnesses as it appears in the summary of the state outline was admitted into the record with the consent of defence counsel, namely:

Timothy Siananzi Munsaka

Sergeant Minred Kudakwashe Nyakurerwa

Constable Cosmos Mapuka

Dr Roberto Lara Diaz

The state led viva voce evidence from a single witness ANDREW MULEYA.  The witness narrated that on that day in question, the sun had just set.  He was seated outside his homestead.  He was in the company of the accused.  The deceased arrived at the scene.  He appeared somewhat drunk but was in control of his mental faculties.  The accused and deceased had a misunderstanding.  The accused insulted he deceased by making reference to the deceased’s mother.  The deceased uttered words to the following effect;

“Get away from here.  I am not the one who bewitched you.  You failed to sleep with your mother to become a traditional healer.”

The deceased left the scene without saying a word.  He walked a few metres before returning to where the accused was seated.  The deceased produced a stick and struck he accused on the chest area.  This conduct drew a sharp response from the accused. He stood up and picked  an axe.  The accused struck the deceased once just behind the neck.  The deceased collapsed and fell to the ground.  The witness quickly left the scene to alert the deceased’s father and the police about the fatal assault.  When the witness returned to the scene he observed that the deceased had a deep chop wound behind the neck.  The deceased had died on the spot from injuries sustained in the attack.  The witness gave a credible, consistent and reliable account of what he had witnessed.  The witness’ evidence fits perfectly with the version put forward by the accused.  The witness disputed that there was any further verbal exchange between accused and the deceased after the insulting remarks uttered by the deceased.  We found the witness’ account to be a truthful account of what he had observed.  The witness had no reason to falsely implicate the accused.  We accept the evidence of this witness.

The state closed its case without leading further oral evidence.

The accused opened his defence case.  He elected to give evidence under oath.  His version is that he had a misunderstanding with the deceased.  The deceased was the aggressor following his insulting remarks against him.  The deceased had struck him on the shoulder using a stick.  Accused indicates that he felt vulnerable and acted in self defence.  The accused admits that he struck the deceased with an axe once behind the neck.  In his confirmed warned and cautioned statement the accused reaffirms that he did not intend to bring about the death of the victim.  The accused does not dispute that he must have used severe and excessive force in trying to defend   himself.

Whether the defence of self defence is available to the accused

Our law provides that a person may raise the defence of self defence in appropriate and well defined circumstances.  The requirements for the defence of person is provided under section 253 of the Criminal Law Codification & Reform Act (Chapter 9:23).  The provision is set out as follows:

“(1)	subject to the Part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is the essential element of the crime shall be a complete defence to the charge if –

when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced as was imminent, and

he or she believed on reasonable grounds that his her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack; and

the means used to avert the attack were reasonable in all the circumstances; and

any arm or injury caused by his conduct;

was caused to the attacker and not to any innocent third party; and

was not grossly disproportionate to that liable to be caused by the unlawful attack …”

In determining whether or not the requirements specified under the Criminal Code have been satisfied, the court shall take into account the circumstances in which the accused found himself.  This shall include any knowledge or capability he may have had and any stress or fear that may have been operating in his mind.  In order to make such determination the court must take into account, the following factors that are common cause:

the deceased was insulted by the accused who uttered extremely offensive remarks regarding his mother.

the deceased initially left the scene before returning to where accused was seated before striking him with a stick on the shoulder or chest area.

the deceased did not persist with the attack.

the accused retaliated by picking up an axe and striking the deceased behind the neck once.

the accused applied such excessive force resulting in vessels to the neck being severed.

the post mortem report reveals a deep chop wound behind the deceased’s neck measuring (9 x 1cm).

the deceased died from the single chop wound and the cause of death is listed as;

Hypovolemic shock

Injury on the vessels of the neck

Chop wound (axe)

Whilst the court notes that the attack on the accused had commenced, there can be no doubt that the retaliation was grossly disproportionate to the unlawful attack.  There is no evidence on the record to suggest that the deceased persisted with his attack upon the accused.  In any event, the accused could have easily escaped from the unlawful attack.  It is our view that the accused exceeded the bounds of self defence and acted unreasonably.  The defence of self defence would not, in our view operate as a full or partial defence to the charge of murder. In determining the appropriate verdict the court took into account the sentiments of the court in Mungwanda v The State SC 19/02.  The accused is accordingly found guilty of murder with constructive intent.

Sentence

The accused has been convicted f a serious offence.  In assessing an appropriate sentence, the court shall take into consideration all the factors in mitigation as indicated by accused’s defence counsel.  The accused was ages 35 years at the time of the commission of the offence.  The deceased was younger than the accused and aged 30 years.  The accused has the usual family responsibilities and any sentence the court shall impose shall result in accused’s dependants being robbed of loss of financial support. The court should however, balance the interests of the accused against the interests of justice.  In this regard, the sentence imposed must serve the ends of justice.  The sentence itself must be fair taking into account all the circumstances surrounding the offence.  What aggravates this matter is that a lethal weapon was used.  A single blow to the deceased’s neck was fatal.  The injuries reflected in the post mortem report leads to the inevitable conclusion that the accused must have applied severe and excessive force in delivering the blow.  The deceased suffered a deep cop wound behind the neck and the vessels of the neck and cervical spine were severed.  Such reckless and wanton display of violence was not called for.  For his credit, however, the accused surrendered himself to the police and co-operated with the police throughout.  The accused showed a measure of remorse and accepted responsibility for his conduct.  Accused has been in remand prison since February 2019, when this incident occurred, which is a period of five months.  The accused has thus served a portion of the sentence and the sentence this court shall impose must take into account the pre-trial incarceration period.

This court has the duty to remind offenders that violence has no place in any civilized community.  The loss of human life in the circumstances of this case was unwarranted.  The accused must be handed a sentence that will rehabilitate him.  The sentence must not be so harsh as to break him.

In the result the following sentence is deemed appropriate.

“Accused is sentenced to 20 years imprisonment of which 5 years is suspended for 5 years on condition accused does not within that period commit any offence involving violence for which he is convicted and sentenced without the option of a fine.”

Effective sentence: 15 years imprisonment

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National Prosecuting Authority, state’s legal practitioners

Legal Aid Directorate, Hwange, accused’s legal practitioners