THE State V Tashinga Rufaro Edward Musonza

### Preamble
1
HB 172.19
HC (CRB) 13/19
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THE STATE

Versus

TASHINGA RUFARO EDWARD MUSONZA

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr  J Sobantu and Mrs Dewa

BULAWAYO 9, 11 AND 26 JULY 2019

Criminal Trial

R Takuva and N Ndlovu for the state

K Tundu for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 26th November 2018, in Gweru, he unlawfully caused the death of Lucy Duve by striking her with an unknown object on the head and also used booted feet, fists and open hands to assault her all over the body several times, intending to kill her or realising that there was a real risk or possibility that his conduct may cause her death but nonetheless continued in such conduct.

The following were tendered as exhibits before the court:-

the state summary

the defence outline

the accused person’s confirmed warned and cautioned statement

the police report

the cellphone that allegedly belonged to the deceased

a pair of shoes allegedly belonging to deceased

1 dreadlock allegedly belonging to deceased

A T-shirt allegedly belonging to the accused

A sketch map allegedly of the scene of crime

They were all duly marked.

The state led viva voce evidence from the following witnesses:

- 	Ellen Msopero

-	George Himalaya

-	Nokuthula Matsikiti

-	Dr Sanganai Pesanai

The evidence of the following witnesses was expunged from the court record.

-	Noleen Moyo

-	Portia Topodzi

-	Tawanda Johnson Munyari

-	Fungai Ngawagare

The evidence of the following witnesses was admitted into the record as it appears in the state summary in terms of section 314 of Criminal Procedure and Act Chapter 9.07.

-	Robert Chikwanha

-	Mabel Gotora

-	Gibson Moyo

-	Never Shumba

-	Perseverance Mpofu

-	Killion Sibanda

-	Arnold Zvokureva

-	Aaron Tamboonei

-	Welcome Dube

The accused person gave evidence for the defence.

The state case

First to testify was Ellen Msopero.  On the night of 25 November 2018 she was at number 16 Acacia road Windsor Park in Gweru.  She retired to bed at around 9pm.  At midnight she was awoken by dogs barking next door.  She then heard noise from a male person saying insulting words like “fuck you”.  She thought that was happening outside the yard.  But she later heard noise from the gravel stones within the yard signaling that there were people walking inside the yard.  She peeped through the window and saw the deceased walking towards the gate.  The deceased was naked.  She then saw accused follow deceased also naked.  They went outside the gate.  The dogs still barked so she could not hear clearly what these 2 were saying, she then heard the deceased scream.  She then saw the 2 walking back into the yard.  They walked next to the wall.  She then heard the accused order the deceased into the motor vehicle so that they go.  After a while she heard the car doors closing and she saw the deceased walk to the gate, she opened the gate and closed it after the car had driven through.  She was now dressed.  The motor vehicle then left.  These were the material respects of Ellen Msopero’s testimony.

Next to testify was George Himalaya Makwenjere.  He told the court that he knew accused as his colleague at work and the deceased as accused’s girlfriend.  On the night in question, he was phoned by the accused person after midnight.  The accused person accused the witness of having an affair with the deceased.  He disputed that and he requested to talk to the deceased and the deceased said accused thought the witness and deceased had an affair.  He then heard some noise from the background and it appeared there were people having an altercation.  The phone then went off.  He could not tell the voices of the people in the altercation, it was not clear.

The accused called again after an hour and said that he is coming to the witness so that they could discuss the issue.  They then came to the Airforce base where the witness was.  Accused sat on the driver’s seat and the deceased on the passenger seat.  The witness then noticed that Lucy had a swollen lower lip.  He then asked accused what that was, referring to accused as Jahman since they usually called each other like that.  Accused then said the witness must not call him Jahman.  The accused then told deceased to explain her story now that her boyfriend was there.  The deceased then told the witness that the accused believed the witness and the deceased were dating.  The accused then got angry and said to the deceased so she thinks he is the stupid one there.  He then got out of the motor vehicle and went to the passenger seat where the deceased was and when he got there, he opened the door, and pulled the deceased out, holding her through her arms in both hands.  He then slapped the deceased and the deceased started running around the motor vehicle with accused in pursuit.  The witness tried to restrain the accused person but he pushed him away.  He could smell alcohol from the accused.  After being pushed, the witness just staggered away but he did not fall.  At that time the deceased was in front of the motor vehicle, that is when he caught up with her, tripped her and she fell down sideways.

The accused person then kicked the deceased on the chest.  The witness got frightened at that stage.  As deceased was kicked she produced a certain queer sound that was not a scream.  He said that he could not imitate the sound that came from the deceased but that it was a sudden sharp sound.  The witness then went into the house to find some help.  He then came out with his girlfriend who was then privy to the issue as he had explained to her.  The witness asked his girlfriend to come and talk to accused so that he stops assaulting the deceased.  He said the accused kicked deceased on the chest like someone who was kicking a ball and that he could not tell the degree of force exerted.  He also said that accused wore some push ins.

When the witness and his girlfriend went to accused, accused was furious asking what the witness’s girlfriend wanted.  The witness’s girlfriend knelt down pleading with accused not to do what he was doing.  The accused kept advancing towards the witness’s girlfriend until the witness held his girlfriend and they went back into the house.  After that the witness tried to look for people to assist but could not get anyone.  He then went outside and then saw the deceased seated on the passenger seat.  The accused person stood outside the motor vehicle.  When the witness got to the motor vehicle he then checked on the deceased who was seated with her head resting on the seat and was breathing heavily like someone with a blockage in her breathing system.  The witness then went to the accused and for some reason the accused was then calm.  The witness asked the accused person what was wrong and the accused said that the witness had an affair with the deceased who was his girlfriend for the past 3 years.  The witness then asked accused if such allegations were real, where had the accused been all the time and he also challenged the accused to look him straight in the eye and make those allegations.

Accused then said that is what deceased had told him and that he (accused) was not afraid of the witness.  The witness then told accused that the deceased had been injured and needed medical attention.  Accused agreed and then left.  He later received a phone call from one Nokuthula Matsikiti who said she was with accused and deceased in a motor vehicle going to Windsor Park and that deceased was hurt.  They then looked for one Tawanda Munyari who was at accused’s place.  Him and Munyari then spoke to Matsikiti over the phone and arranged to meet at a bus stop so that deceased could be taken to the hospital.  They went and met and the witness saw deceased seated in the car being driven by the accused on the passenger seat.

They then agreed with Munyari that deceased be taken to hospital.  The witness parted ways with them as he was to travel to Harare.  He later received a call from Matsikiti at around 5am advising her that deceased had died.  He confirmed that he found shoes, a dreadlock and deceased’s cellphone in the morning at the scene where accused had stopped.  He said that there is a flower bed ridge made of stones at the airbase.  He also said when the accused person chased the deceased he did not appear drunk.  These were the material respects of George Makwenjere’s testimony.

Next to testify was Nokuthula Matsikiti.  A good portion of her testimony is not relevant to the event leading to the deceased’s demise and yet this court is only interested in the circumstances surrounding the death of the deceased which is the issue before it.  She was also a girlfriend of the accused together with the deceased and that both had accepted that it was so.  She did meet accused and deceased earlier on in the day at deceased’s place.  She later retreated to her place until the morning of the 26th of November when accused came and knocked on her door.  The accused told the witness to come to the motor vehicle as deceased had been injured.  She then followed accused to the motor vehicle, accused switched on the motor vehicle lights and the witness saw the deceased with her eyes wide open but not blinking.  She was breathing with difficulty. The witness called deceased’s name but she did not respond.  She then asked accused what had happened and the accused said the deceased was not injured but just needed some soothing.

The witness then said that deceased needed to be taken to the hospital.  The accused person then said a police clearance would be required before she’s taken to the hospital.  The witness then asked the accused what had happened and the accused said the deceased had confessed to sleeping with George Makwenjere on his bed.  She then tried one Gabhela, but could not get through his phones, he then called George Makwenjere and they agreed to later meet at the bus stop with Tawanda Munyari.  Meanwhile the witness, accused and the deceased drove to Windsor Park and when they got there accused asked the witness to soothe the deceased’s injuries but the witness said she could not.  The accused then asked the witness to accompany him to Noleen.  Accused requested Noleen to soothe the deceased’s injuries, Noleen called out on deceased but deceased did not respond.  Noleen also said she could not soothe deceased’s injuries.  Later they met Munyari and Makwenjere.  They then went to the airbase hospital.  They failed to find the hospital staff there.  They then went to Claybank hospital.  Munyari went into the hospital to process documents while accused and the witness remained with deceased in the car.  Accused later said deceased was no more breathing.  They then called the nurses.  The doctor was also called who further confirmed that she was no longer breathing.  They were then told to go to Gweru General Hospital since Claybank had no mortuary.  Under cross-examination she said earlier in the day accused and deceased had taken some dagga.  She said accused kept on calling deceased to wake up.  She also stated that accused’s hand was swollen.

Next to testify was Dr Sanganai Pesanai.  He told the court that he is a medical doctor and that he has worked in the department of pathology for 20 years.  He confirmed that he prepared the post mortem report in this matter namely exhibit 4 and that it related to the body of Lucy Duve.  He observed multiple bruises from blunt force trauma.  He also observed that the body had multiple scalp haematoma.  The body had swollen both .eyes.  He explained that the body had multiple abrasions and that an abrasion is where the skin is broken.  He also said the body had multiple bruises and that a bruise is where there is a change of colour on the skin.  He noted that the abrasions were from blunt force trauma.  He also said there was a huge area on the left breast with bleeding under the skin.  He noted that most injuries could be from trauma.  He noted that the lungs were injured due to trauma.  He noted that there was bleeding in the frontal region of the brain, on both sides of the brain and in the back

He said the deceased had numerous scalp haematomas too numerous to measure.  He said such were caused by multiple trauma to the head.  The deceased also had a fracture on the outside part of the frontal bone.  He said the brain had extensive haemorrhage.  He said there was bleeding into the brain.  He said this would have been caused by blunt force trauma to the head.  He said the injuries to the lungs were caused by blunt force trauma to the chest on the left side of the chest.  He said this is what caused the bleeding and that the force was exerted to the lungs as they hit against the chest wall.  He said the mouth was blue showing that she had difficulty breathing.  She had a bruised colon and this was due to blunt force trauma to the abdomen.  She had bled into the tissue in her upper part of the back, lower back region and the buttocks.  He explained that such bleeding occurs when there is some blunt force trauma applied to the body and not like when a person just falls.

When the doctor was asked if deceased could not have sustained injuries when she fell on a glass table he said that was not possible as he had not observed any glass cuts and also said if she had fallen and got injured that would only affect one part of the body where she hit the table but instead deceased had multiple blunt force traumas all over the body with a minimum of 15 that were significant enough to be noted.  He said the deceased had many blunt force traumas to the head and that he could not count all of them.  He also said that she must have had many blows to the head alone.  He also said that the injuries were serious and that for the lung to have that kind of contusion there was significant impact.  He also said the deceased bled in all parts of the brain and that if one would have fallen they would not bleed in the whole head.

Under cross-examination it was put to the doctor that deceased had taken dagga which could have caused her bleeding inside the head.  The doctor replied by saying in this country they do not do toxicology as part of the post mortem examination but that still she could not have suffered multiple traumas to the head because of the dagga.  The doctor further said she could have smoked dagga on the day in question but that could not have killed her, what killed her was bleeding into the brain due to blunt force trauma.  The doctor further ruled out the fact that the traumas could have been from a fall.  He further stated that the multiple injuries on the head could not have been from a fall.  He further said the amount of injuries deceased sustained on the head were not consistent with a single fall.  Those were the material respects of Dr S Pesanai’s evidence and the state then closed its case.

The Defence Case.

The accused person gave viva voce evidence for the defence.  His evidence also dwells much on the earlier events of the day in question which this court finds not to be useful in the resolution of the issues before it.  The court will thus summarise that aspect and dwell much on the events of the night of the 25th of November 2018 to the morning of 26th November 2018.  From the events of the day, accused confirmed that Nokuthula Matsikiti and deceased were both his girlfriends.  That he also had a girlfriend called Portia Topodzi.  That accused, Nokuthula Matsikiti and deceased once met in the afternoon of the 25th of November, where they had a sex party at the instance of the deceased.  Nokuthula Matsikiti denies such a sex party but says they met, talked and had lunch.  This court is not bent on establishing what really happened that afternoon as such does not assist the court in the resolution of the issues before it.  Accused also says at the sex party deceased, Nokuthula Matsikiti and himself took dagga.  Matsikiti disputes the sex party and also disputes taking dagga herself and says only accused and deceased took dagga.  Again, this court will not dwell on this part as it does not assist in the resolution of the issues before it.  For the question that this court has to resolve is what happened to the deceased on the night in question, leading to her demise the following morning.  The accused person told the court that on that evening, he played pool and drank beer.

The deceased invited him to come to her place of residence, he was initially hesitant until he went late in the evening.  It would appear earlier on that evening accused, deceased and Nokuthula Matsikiti had a misunderstanding on accused’s relationship with a third girlfriend namely Portia Topodzi. The misunderstanding emanated from a picture that the deceased had sent to Nokuthula Matsikiti showing her that accused had gone to Portia Topodzi on that same date as the picture was allegedly from Portia Topodzi’s whatsap profile picture, having been seen and downloaded by the deceased who then sent it to Nokuthula Matsikiti.  Deceased also shouted at the accused person concerning his relationship with Portia Topodzi.  When accused decided to go to deceased’s place late that evening, he found her standing by the veranda holding her phone.  Deceased was naked.  Deceased asked accused to explain the picture depicting him with Portia Topodzi which she had allegedly seen on Portia Topodzi’s profile picture.  Deceased then spoke to accused condemning his conduct.  She further told accused that she also had people chasing after her but she did not accept their proposals. She then gave the accused person her phone to see certain chats where men were proposing love to her but she was turning them down on the basis that she was taken.

It is at this juncture that accused says he saw chats between George Makwenjere and the deceased and the chats depicted a love relationship.  He then questioned the deceased who admitted that she had a love relationship with George Makwenjere and she further confessed to sleeping with several other men.  The accused person then asked the deceased why she always blamed him on relationship matters yet she was so promiscuous.  It is at that stage that she got enraged and the accused got frightened.  Where deceased stood there was an empty beer bottle.  She then took the bottle and smashed it on the window, she then tried to stab the accused but failed.  She just scratched the accused.  The accused then held her hand trying to disarm her.  They then had a scuffle banging and hitting each other against the wall.  The scuffle continued until they left the bedroom and went into the dining room.  They struggled then fell on top of the dining room table.  The deceased fell onto the table and accused fell on her.  Deceased then stood up and picked another empty bottle.  She tried to strike accused with it but he blocked it.  Deceased then ran outside the house.  Accused then heard a sound of a person falling and he then realised that deceased had fallen.  A big part of her body was towards the durawall.  Her head was also towards the durawall.  Deceased then went out of the gate.  Accused followed her and held her hand, at that juncture she got frightened and she screamed.  Accused then told deceased to go back into the house.  Accused then said they should go and talk to George Makwenjere and she agreed.  Accused then phoned George Makwenjere asking him about his affair with the deceased.  They then left to see George Makwenjere..

It is the deceased who opened and closed the gate as they left.  When they got to George Makwenjere, accused then told deceased that her boyfriend was now there and that they did not want to waste time.   George Makwenjere then asked the deceased if she was in love with him to which the deceased answered in the negative.  Accused then came out of the motor vehicle and went to the side where deceased was, he pulled her questioning why deceased was then denying the affair.  He then slapped her on the cheek.  She then started running away.  Accused followed her behind.  George Makwenjere tried to block the accused, the accused pushed George Makwenjere away.  When accused got close to deceased who was still running, he believes the deceased was tripped by stones and she then fell down.  When he got there, he kicked her on the side but he cannot remember exactly where.  She then said sorry and she stood up.  Accused then told her to get into the motor vehicle.  He then went to George Makwenjere’s door.  He then saw George Makwenjere coming with his girlfriend.

He then asked George Makwenjere why he had brought his girlfriend and the girlfriend then said she was begging the accused to put on hold whatever it is that had happened so that they deal with it the following day.  He then left with deceased in the motor vehicle.  He said that on their way, after leaving George Makwenjere’s place, he would ask the deceased why she behaved in the manner that she did and the deceased would only respond when he called her name.  He then went to Nokuthula Matsikiti to request her to talk to the deceased since she was then ignoring the accused person.  Nokuthula Matsikiti also said deceased did not answer and that perhaps they should find someone else.  They then went to Noleen.  Accused says he kept on pleading with the deceased to talk to them and not keep quiet.  By that time deceased was breathing with difficulty.  Accused asked Noleen to soothe the deceased but Noleen said that deceased should be taken to the hospital.

The defence tendered a sketch plan of the scene of murder.  It was duly marked.  Accused under cross-examination accepted that deceased could not have been injured when she fell once onto the table but that she fell on several occasions.  Specifically asked how many times, he said three.  When asked about the injuries she sustained after falling on the glass table, accused said he could not say as he did not see anything on her body.  He said even after deceased had fallen outside, he also did not see any injuries on her.  Accused also said his defence was partly provocation and partly self defence in that at deceased’s place he was defending himself and at the airbase he was provoked.  The accused person also admitted that at all material times the deceased was in his custody and that he only left her briefly in the motor vehicle when he went to George Makwenjere’s house.  Accused further said that he does not know what caused the multiple blunt force traumas on the deceased’s body as the 2 hit each other many times against the wall and she also fell on the table and also fell at the airbase. Accused also told the court that deceased did not exhibit any signs of having been injured after falling on the glass table and next to the durawall.  Neither did deceased tell him that she had been injured.

In his confirmed warned and cautioned statement the accused person stated as follows:-

“I deny the charge of murder being leveled against me.  Whilst I admit having fought with the deceased I did not foresee that death would occur.  I suspect that the deceased was injured when she fell onto a glass table at number 16 Acacia Road, Windsor Park Gweru.  That’s all I wish to say.”

In his defence outline the accused person states the following:-

1)	Whilst he admits having fought with the deceased, he did not foresee that death would occur..

2)	The deceased succumbed to injuries she sustained when she fell onto a glass table at number 16 Acacia Road, Windsor Park Gweru.

3)	The deceased was actually the aggressor who attacked and provoked the accused by trying to stab him with a broken empty bottle and it was during that commotion when the deceased fell onto a glass table and got hurt.

4)	The actions by the deceased might have been caused by the fact that the two had been drinking beer on that day.

5)	The failure to get medical attention in time was also a contributing factor to the deceased’s demise.

We then proceed to analyse the facts before us.

From Ellen Msopero’s evidence, we conclude the following:-

1)	an altercation did occur on the night of 25 November 2018 at 16 Acacia Road Windsor Park and that accused then ordered the deceased into the motor vehicle.  The deceased opened and closed the gate as the car left number 16 Acacia.

At this stage an inference can be drawn that deceased was well as she could open and close the gate

George Makwenjere’s testimony was to the effect that the deceased arrived, the parties talked, the deceased ran around the motor vehicle before being tripped and kicked by the accused person.  A conclusion can also be drawn that when deceased arrived at the airbase she was well.  That whilst at the airbase the deceased was assaulted by the accused.  It is important also to note that at this juncture there was no physical fight between accused and deceased.but that accused assaulted the deceased.  George Makwenjere fled during the assault on the deceased.

From Nokuthula Matsikiti’s testimony, the court can draw the following conclusions.

(1)	That when accused came at night with deceased she was unwell, she was breathing with difficulty.  She was not blinking and did not respond to her name.  Accused asked Nokuthula Mtsikiti to soothe deceased and she refused saying deceased had to be taken to the hospital.  That accused said a Police clearance would be needed first.

From Dr S Pesanai’s testimony, this court concludes that deceased suffered severe multiple blunt force trauma that resulted in fatal injuries especially to the brain.  That the falling on the glass table could not have caused injuries all over the body.  That the cause of death was severe subarachnoid haemorrhage, skull fracture, severe assault.

From the defence case the following conclusions can be drawn.

1)	That accused and deceased had an altercation on the night in question.  They fought at 16 Acacia, but the fight later subsided as they then left for George Makwenjere’s house at the airbase.

2)	That at the airbase the 2 never had a physical fight but that accused assaulted the deceased.

3)	That when they left 16 Acacia, accused did not observe any injuries on the deceased either did deceased exhibit any symptoms of having been injured nor did she say that she was injured.  A conclusion can thus be made that deceased was seemingly well when the 2 left for the airbase.  Even when they got to the airbase she could talk and run.

4)	At the airbase, accused was angered by deceased’s denial of the affair and then assaulted her.

5)	Deceased also fell at the airbase and accused kicked her after she had fallen.

6)	It is upon leaving the airbase that deceased was then seemingly unwell, quiet, not blinking and breathing with difficulty .

It is also important to note at this juncture that in his warned and cautioned statement accused does not mention assaulting the deceased..

It is also important to note that in his defence outline the accused person does not mention assaulting the deceased.  In fact he prays for his acquittal and does not offer a limited plea to a charge of assault as opposed to murder.  Defence counsel only submitted the plea to assault in his closing submissions at the end of the trial and yet from the facts clearly the issue of assault was not an issue.

This court has the task of determining what happened to the deceased, how did she sustain the injuries that led to her death on 26 November 2018?  Were those injuries from falling or where they inflicted by somebody and if so who?  This court does not have direct evidence of how the deceased sustained these fatal injuries as there is no eye witness account.  However, this court does have evidential assessment tools at its disposal one of which is circumstantial evidence.

On the law on circumstantial evidence, I will quote from the South African case of State v William Nkuna 2005 ZANWHC87 where the accused was convicted on circumstantial evidence in a case where the deceased’s body could not even be found.  The court went through a series of proven facts and inferred from them the guilt of the accused.

The learned Judge in that case said thus and I quote:

“in an appropriate case, a conviction of murder can therefore be sustained on the basis that there are facts so incriminating and so incapable of any reasonable or innocent explanation as to be incompatible with any hypothesis other than a finding that the accused has in fact killed the person who has disappeared..”

The evaluation of circumstantial evidence must be guided by a test of reasonableness.

The onus on the State is not that it must prove its case with absolute certainty or

beyond any shadow of a doubt.  All that is required is such evidence as to satisfy the

court and to prove its case beyond reasonable doubt.  It is trite law that the accused is

under no legal obligation to prove his innocence.  The State must prove the guilt of

the accused beyond reasonable doubt.

In the case of circumstantial evidence such as this one, I am guided by the locus

classicus case of R v Blom 1939 AD 188, which sets out the cardinal rules of logic

that have to be satisfied when dealing with inferential reasoning.

Firstly, the inference sought to be drawn must be consistent with all the proved facts.  If it is not, the inference cannot be drawn;

and

Secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  If they do not exclude the other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.

In S v Cooper 1976 (2) SA 875 (A), that court cautiously remarked that where one is faced with circumstantial evidence alone, one must make a distinction between inference and conjecture.

There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  Sometimes these other facts can be inferred with considerable certainty.  If there are no positive proven facts from which the inference can be made, the method of inferential reasoning fails and what is left is mere speculation or conjecture.

Of course, the strength of circumstantial evidence will tend to vary depending on the cogency and character of the circumstances.  What needs to be pointed out however, is that when the evidence is abundant, such as in this case, it may be equal to or even superior to direct evidence.”

In this case we have the following proven facts:-

1)	That accused and deceased had an altercation on the night the deceased got injured.

2)	That accused and deceased left 16 Acacia with deceased seemingly fine and not having complained of any injuries.

3)	That Accused himself did not observe any injuries on the deceased nor signs that deceased was then unwell.

4)	That deceased walked opened and closed the gate.

5)	That when the 2 got to the airforce base George Makwenjere observed that deceased was talking and she could actually run around the car.

6)	That accused became angry with the deceased at the airforce base when she denied the affair with George Makwenjere.

7)	That accused assaulted deceased, George Mawenjere tried to restrain him, and fled to seek help.

8)	That when he George Makwenjere later came back, deceased was seemingly unwell seated in the car, and breathing with difficulty.

9)	That at all material times, deceased, after leaving 16 Acacia with accused was with accused save for the brief moment when he followed George Makwenjere to his house after assaulting the deceased.

10)	That Nokuthula Matsikiti was requested by accused to soothe the deceased and she realised deceased was in bad shape.

11)	That Noleen Moyo was requested to soothe the deceased but she too felt deceased was a hospital case.

12)	That accused attributed deceased’s injuries to the fall on the table in 16 Acacia.

13)	That he later changed to say she fell 2 more times.

14)	That however, it was still his testimony that after falling deceased still appeared fine.

15)	That accused did not divulge assaulting the deceased at the airbase in his defence outline.

16)	That accused despite having assaulted deceased, did not admit to that aspect in his defence papers prior to the court hearing.

17)	That the deceased died from multiple blunt force trauma to the brain leading to her bleeding into the brain and that such blunt force trauma is consistent with a severe assault.

The proved facts should eliminate any other possibility and lead to only one conclusion for the court to reasonably draw an inference from them and conclude as to what caused the demise of the deceased.

The state submits that the accused person severely assaulted the deceased resulting in her death.  The accused disputes that and in fact gives another possibility of deceased having fallen many times resulting in her sustaining fatal injuries.  I will start by assessing if the proven facts lead to a possibility that the deceased fell many times resulting in her sustaining fatal injuries

To start with from the fall on the table at 16 Acacia, accused himself says he did not observe any injuries on deceased.  That deceased did not exhibit any symptoms of having been seriously injured.  In fact deceased stood and ran out of the house.  Deceased was therefore fine after the fall on the table so it could not be responsible for her demise.  At a later stage in his defence accused accepts this fact.  The doctor also disputed that a fall on the table would cause the nature of the injuries he saw on the deceased’s body as they were countless.  He says he could not count all of them and had to select significant ones.  The doctor actually refuted that and said from his findings a person could not be injured all over the body, many times on the head,and on top of the head from a single fall.

The defence never put it to the doctor that in fact deceased fell many times.  Neither were the other falls captured in their defence papers.  We heard about the 2nd and 3rd falls being responsible for the injuries after the doctor had testified and was gone and after he had successfully refuted the fact that the fall on the table could have resulted in the injuries that he observed on the deceased’s body.  George Makwenjere saw accused kick deceased on the chest, a piece of evidence that is consistent with the doctor’s finding on the deceased’s body.  The accused himself says at the airbase, deceased fell on her own, he attributes these fatal injuries to that fall, but however, his own conduct of proceeding to assault the deceased through kicking her like a ball, is inconsistent with a finding that deceased must have been severely injured in that fall.  Why would the accused person proceed to kick like a ball a seemingly severely injured person?  In any event that deceased could have suffered serious injuries from this particular fall was not part of the defence papers and was never put to the doctor to comment.

For these reasons, the possibility that deceased could have fallen 3 times and hence gotten injured is eliminated by the proved facts.  Even if it were to be argued that deceased might have fallen as alleged but she could not have sustained severe injuries all over her body as exhibited by the post mortem report.  She also could not have behaved normally or exhibit signs of being fine at 16 Acacia after falling twice and sustaining serious injuries.  This leaves only one other possibility that of deceased having been severely assaulted by the accused.  The following facts have been proven.

That accused had an altercation with deceased on the night in question.

That they fought in the house at 16 Acacia.

That the fight subsided, they then dressed and left for the airbase.

That at all material times before getting to the airbase the deceased was seemingly fine.  Actually the accused person told the court that on their way to the airbase they chatted.

That accused became angry at the airbase when deceased would not acknowledge an affair she allegedly had with George Makwenjere..

That accused then chased after the deceased, she fell and he kicked her on the chest.  George Makwenjere who had tried to restrain the accused person but failed fled to seek for assistance.  When he came back deceased now sat in the car and was no longer fine, she breathed with difficulty.

The doctor observed multiple blunt force trauma to the head, all over the body, deep tissue injuries, bleeding into the brain and told the court that all these are consistent with a severe assault.

At all material times, deceased was in accused’s custody.  The only reasonable influence to be drawn from these facts is that the accused person perpetrated the severe assault on the deceased leading to her demise.  This court is entitled to draw such an influence from the proved facts because there is no other reasonable influence that can be drawn from same.

Defence counsel submitted that the state has failed to prove its case against the accused, because it was mandated to prove, how the assault was perpetrated, what weapon was used.  It is the view of this court that this submission is not correct for if one uses the same African case of State v William Nkuna (supra) then an accused person who was last seen with a deceased under circumstances that infer that he later killed her, would escape culpability on the same premise that it is not known what the accused person did to the deceased and therefore the state has failed to prove its case.  The state would have proved its case beyond a reasonable doubt where the indirect evidence tendered would lead to a reasonable inference that the accused person is culpable.

This court is also mindful of the trite principle of our law that an accused person does not have an onus to prove the truthfulness of an explanation that he gives and that an   accused’s defence should succeed where it is reasonably possibly true.  Refer to the case of State v Makanyanga 1996 (2) ZLR 331.  This court will proceed to show why, the accused’s defence has been dismissed as being improbable and untrue.

The accused person from his confirmed warned and cautioned statement and the defence outline deliberately left out the aspect that he did at some stage assault the deceased at the airbase.  The accused person attributed the deceased’s demise to the fall on the dining room table, after he realised that the doctor had reasonably quashed that line of defence.  He then added 2 other falls to his defence, which falls were not even put to the doctor during cross-examination.  The post mortem report itself, and doctor’s testimony show multiple blunt force trauma injuries that are inconsistent with falling as stated by the doctor that a person cannot fall and get injured all over so many times and even get injured on top of the head.  The deceased even after these alleged falls, was seemingly well, after falling on the glass table, she thereafter stood up and ran outside.  She fell again outside, but came back, dressed, managed to open the gate and close it.  The two left for George Makwenjere’s place chatting along the way.  Even George Makwenjere saw the deceased as they arrived at the airbase, she could talk, she ran around the car.  At all material times the deceased was with the accused.  It therefore follows that the defence proffered by the accused person is not reasonably possibly true in the circumstances and it is also tainted by after thoughts.  It is for these reasons that this court dismisses the accused person’s version and accepts that from the proven facts the state has indeed managed to prove the accused person’s guilt of severely assaulting the deceased thereby causing her death, beyond a reasonable doubt.

We then proceed to analyse what the accused person is guilty of.  The post mortem report, details injuries that the doctor concluded were as a result of a severe assault.  The deceased’s brain had bleeding in all regions, frontal, right and left parietal and occipital regions.  Deceased also had a skull fracture.  Deceased had multiple haematomas, abrasions and bruises all over the body.  Deceased also had deep tissue injuries.  Whilst it cannot be held that accused at the material time desired death, it is the finding of this court that from the nature of the injuries occasioned by the assault, the accused person did foresee death as a real risk and possibility from his actions but nonetheless continued in his wrongful conduct.  It is for these reasons that the court finds that the accused person did have a legal intention in the circumstances and he is accordingly found guilty of murder with constructive intent.

Sentence

The accused person is convicted of murder.  He is a first offender.  He is 30 years old.  He is single and has no children.  He has several dependants including his blind grandmother and blind grandfather.  He also takes care of his siblings.  Both his parents are deceased.  He paid $500 towards the funeral of the deceased.  The defence counsel has submitted that the accused was contrite but it is the finding of this court that a contrite person will volunteer information to the court.  He will not attempt to avoid responsibility until the end and only accept an assault in the middle of the trial and yet right from the time his statement was recorded by the police, he knew that at some stage he had assaulted the deceased.  To this end, this court does not know how exactly and with what the deceased was assaulted.  The court had to infer accused’s guilt and yet he was there and he knows exactly what he did to the deceased.  This is not contrition by any standard.

Defence counsel also submitted that accused was intoxicated, whilst George Makwenjere told the court that accused smelt of alcohol, he said to him accused did not appear drunk.  Even accused himself never told the court that he acted in a culpable way because intoxication had blinded him.  Accused, from the events of the night in question he was fully alert and appreciated all that happened and what he did.  Defence counsel has submitted cases that range in sentence around 12-13 years.  He has however not told this court the total circumstances of those cases as sentencing is not a one jacket fits all approach.  Each case depends on its own facts.  Sentencing trends in our Zimbabwean jurisdiction in accused persons convicted of murder with constructive intent averages from between 10 years effective for those cases with weighty mitigation and up to 25 years for those bad cases with minimal mitigation. Each case is placed in this range depending on the circumstances in it.

The state has submitted that accused was not contrite, that he brutally assaulted the deceased and that he tried to duck responsibly for same.  This court is of the view that the mitigation having been taken into account, the circumstances of the commission of this offence show a brutal assault on a defenceless woman, resulting in countless injuries. The accused’s personal circumstances, the circumstances of the commission of the offence and the public interest at large should all be balanced so that a sentence that serves the interests of justice is achieved.

There are no weighty mitigatory circumstances in this case, there is the usual mitigation which is almost present in every other case.  Although accused pleaded provocation, no evidence was led to show what is it that enraged the accused since the deceased was allowed to dispute that which she felt was not correct.  However the brutality of the assault as evidenced by the post mortem report and the lack of contrition on the part of the accused will guide this court to settle for the upper end of the bracket in sentencing in such cases.

It is for these reasons that the accused person shall be sentenced to 20 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Chihambakwe Mutizwa & Partners c/o R Ndlovu & Company, accused’s legal practitioners

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