The State v Appross Mushunje

### Preamble
1
HCC06/22
CRB16/22
---------


THE STATE

versus

APPROSS MUSHUNJE

HIGH COURT OF ZIMBABWE

MUZOFA J,

CHINHOYI. 9 ,18 March  &10 , 13 May , 2022

ASSESSORS: 	1. MR CHIVANDA

2. MRS MAWONEKA

Criminal Trial

T.H. Maromo, for the State

T. B. Muvhami, for the Accused

MUZOFA J: The accused and the deceased were husband and wife. They lived in Norton. The marriage had subsisted for 22 years at the time of the deceased’s demise. A marital dispute ensued with the accused alleging infidelity on the part of the deceased. As per cultural practice the deceased invited her uncle to mediate. An attempt to mediate seemed to yield some short lived reconciliation of about a day or two ending with the death of the deceased. On the 13th of July 2020 the uncle bade farewell. He was joined by the accused who wanted to proceed to Harare. They were accompanied by the accused’s son to the bus stop. At some point the accused decided to return home where the deceased was. The reasons for the return are disputed.

The state alleged that the accused returned for the sole purpose of murdering the deceased. The state further alleged that upon arrival he slapped the deceased and strangled her leading to her death. He locked the door and disappeared. He was eventually arrested and charged with murder in contravention of section 47 (1) (a) and (b) of the Criminal Law Codification and Reform Act.

The accused denied the charge. He indicated that on the fateful day, he indeed returned to the house. His intention was to collect his identity cards and not to murder the deceased. When he arrived an altercation arose between the deceased and him. The deceased attacked him with a pair of scissors and later pulled him by his testicles. In order to defend himself he strangled the deceased using his hands.

The State Case

The state produced by consent a post mortem report, two stainless steel scissors, a sketch plan and an affidavit by Dr Mhuka. The evidence of Benjamin Chirenje, Patience Makoni, Spiwe Chivanga, Felistas Chimbanje, Prosper Tsvangirai and Talent Chipwanya was formally admitted by consent.

Two witnesses gave oral evidence. Dr Mhuka a medical doctor gave formal evidence to explain the medical terms used in the post mortem report. The post mortem report indicated the cause of death as strangulation. The crucial part of his evidence is that where a person is strangled, it is possible to lose consciousness and later on regain consciousness. Death may occur even after gaining consciousness due to the damage already caused to some internal organs. This depends on various factors. His evidence was necessary because the accused indicated he strangled the deceased but left her alive.

He was not cross examined.

The second State witness was the deceased and the accused’s son. A young man aged about 22 years. He was visibly traumatised even after a year of the commission of the offence. It is a harrowing experience for a child to give evidence against a father accused of killing his mother. Psycho-social support must be provided for such witnesses to help them integrate back to normal life.

He did not witness the actual circumstances leading to the death of the deceased. He confirmed that his parents had marital problems. The accused, accused the deceased of infidelity. On the 11th of July 2020 an uncle visited them to mediate. He did not hear what they spoke about as he gave them space. After the uncle’s intervention, it appeared his parents had reconciled, because they could talk to each other. On the 13th of July the uncle bade farewell. The accused was also leaving for Harare. He accompanied the accused and the uncle to the bus stop. On the way, the accused said he had forgotten his work identity cards.  He returned home. They remained waiting for the accused.

The accused took long to return. His uncle sent him to check if the two, that is the deceased and the accused were not fighting again. True to the uncle’s suspicion, he found the accused still in the bedroom where the deceased was. The door was closed; he could not open it. He just heard some muffled voices to the effect that everybody has to go to work. He waited by the dining room until his father exited the bedroom. The accused bade him farewell that he will not return due to what his mother had said.

He left with the accused to the bus stop. The uncle and the accused boarded the bus and left. He returned, he did not go back home right away. He was in possession of his mother’s phone. When he returned home, he called out for his mother, there was no response. He entered the bedroom and saw the deceased lying on the floor covered by a blue blanket. He tried to wake her up to no avail. He realised that she was dead. He then described the tortuous journey to the police station on foot at night with a friend to make a report.

His cross examination did not yield much information to establish how the accused caused the death of the deceased. The State case remained anchored on circumstantial evidence.

Thereafter the state closed its case.

The defence case

The accused gave evidence as the sole defence witness. He adopted his defence outline. In his evidence in chief he elucidated the details of the events leading to the deceased’s death.

According to the accused, when he returned to the house he found the deceased in the bedroom. He wanted to retrieve his work identity card which enabled him to get free transport in all Zimbabwe United Passenger Company (ZUPCO) buses.  As he searched his bag he advised the deceased to leave the keys somewhere he could find them as he intended to pack his clothes and move out of the matrimonial home. He was no longer interested in living with her.

The deceased was incensed by this. To spite him she insulted him and advised him that she was dating a better man who had a car. The accused also became angry as his manhood was challenged. He slapped the deceased once.

The deceased would have none of that, she took a pair of scissors from her bag, as she had plenty of them for use at her work place as a hair dresser. She tried to stab him, he was saved by an overcoat jacket he was wearing and he grabbed her by the hand and twisted it. He took the pair of scissors and threw it behind the bed.

He thought calm had returned. However the deceased picked yet another pair of scissors and tried to attack him. He disarmed her. Unarmed, the deceased grabbed the accused by the testicles. In an act of self defence, he held the deceased by the neck from behind and squeezed the neck for the deceased to release him.

The accused held the deceased by the neck until he felt no movement. He panicked and left the room. In an apparent move of shock and helplessness he sent a voice note to the deceased’s sister outlining what transpired.

He then returned into the house. He found the deceased alive lying on the bed. The deceased started shouting obscenities at him. He bade the deceased farewell. He exited the house and found his son, the second State witness standing by the verandah. They went to the bus stop and he left for work.

He did not return home as he was not sure how the deceased would behave. He tried to call the deceased on her phone but at all times his son had the phone. He had not yet returned home. He later learnt of the deceased’s death.

He neither had the actual intention nor foresaw that death will result. He acted in self defence. Infact he said he also wondered what caused the deceased’s death since he left her alive. The accused raised the defence of provocation and self defence.

Under cross examination he stuck to his version. He was asked to demonstrate how he was positioned when he strangled the deceased. By his demonstration the accused wrapped his arm around the deceased’s neck, the deceased was facing away from the accused. He denied that he returned to the house to murder the deceased. He actually left the deceased alive. He did not know that the deceased might have sustained some injuries that needed medical attention as a result of the strangling. Had he known he could have sought medical assistance for her. When he left her she was still alive.

The defence then closed its case.

Closing submissions

Both parties filed closing submissions. Mr Maromo for the State urged the court to find the accused guilty of murder with constructive intention. According to the State the two defences of provocation and self defence are not applicable in this case as complete defences. With regards to provocation, the State referred the court to the case of S v Nangani 1982 (1) ZLR 150 (S) where the court discussed the two tier inquiry which is subjective at the first instance and objective in the latter part. According to the State the bragging by the deceased should not be taken as provocation. On self defence, it was submitted that the accused exceeded the bounds of self defence.  The court was then referred to the applicable law in the Act and the relevant cases. I will revert to them later in the judgment.

Mr Muvhami also addressed the court in respect of the two defences raised by the accused. It was submitted that the bragging by deceased that the accused was a poor church mouse and that she was dating wealthy paramour must be accepted as provocation that should reduce the charge of murder to culpable homicide.

In respect of self defence, it was submitted that the court must accept the accused’s version of events. The State did not produce any evidence to refute the accused’s version of events.  We were referred to the case of S v Mupatsi 2010 (1) ZLR for that legal position. The accused was under attack, the deceased held her by the testicles, his conduct was meant to avert the attack. There was no real risk or possibility that death may result. In the final, the court was urged to find the accused not guilty.

Analysis of the facts.

The following is common cause that the accused and the deceased had an altercation on the day in question, that the accused strangled the deceased and that the deceased died as a result of strangulation on the same day. The court has to determine if the accused had a legal basis to excuse his conduct based on self defence and provocation.

The door to the bedroom where the two were could not open from outside. The State alleged that the accused had locked it but there was no evidence to prove that assertion. The State also said the accused escaped and did not return home. We were satisfied by the explanation given by the accused why he alighted the bus at Warren Park and why he did not return home on the day in question.

The real issues are resolvable by considering the events in the bedroom as stated by the accused.

There was no evidence to controvert that the deceased hurled insults at the accused person. We therefore accept that the accused was taunted by the deceased for his poverty compared to the wealthy boyfriend.

We also accept that the accused might have been attacked by the deceased using the scissors. The accused said he disarmed the deceased on the two occasions. So the danger of harm from the scissors was averted without further damage to any of the parties. What probably gives away the accused is that, he said after disarming the deceased the second time the deceased got hold of his testicles. If the deceased indeed held the accused by the testicles that was an unlawful attack. There was no evidence to controvert the accused’s assertion. We accept that pulling of testicles is an unlawful attack that is potentially life threatening.

We then have to consider the circumstances of the attack and the accused’s reaction.  We assume that the deceased was facing the accused when she pulled his testicles. There was no explanation how the deceased was then strangled from the front neck while giving the accused her back. The demonstration by the accused created a picture of the deceased held by the arm from the front while her back was against the accused. There is no way her hands could have held the accused’s testicles at the time she was strangled. We therefore conclude that, at the time that the accused strangled the deceased his testicles where not held by the deceased. There was no attack, if at all the accused’s testicles were held that phase had passed. The strangling happened when the accused was no longer under any attack from the deceased. The accused might have continued to strangle the deceased out of sheer anger.

The law

The state has to prove that the accused had either actual or legal intention when he engaged in the unlawful conduct resulting in the death of the deceased. Actual intention exists where the perpetrator sets out with an aim or desire to kill and proceed to kill. On the other hand legal intention exists where the perpetrator commits the actus reus foreseeing that it may cause death of the other but despite the foresight proceeds with his conduct. See S v Mugwanda SC 19/2002. In that case these two legal concepts were succinctly set out as follows:

“On the basis of the above it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that:

Either the accused desired to bring about the death of his victim and succeeded in completing his purpose, or

While pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless… on the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain, making this a question of degree more than anything else) in the test for culpable homicide the test(s) he ought to, as a reasonable man have foreseen the death of the deceased.”

The two defences raised by the accused, if established can negate the actual intention to commit the murder.

Provocation is a partial defence to a charge of murder where the court finds that there was provocation and the accused committed the offence lacking the necessary intention to kill or where he reasonably lost control and committed the offence. See s239 of the Act.

As properly submitted for the State the test is subjective at the first instance. The court has to put itself in the shoes of the accused and ask if the deceased’s conduct constitutes provocation. On the second rung the court must consider whether the provocation was such that a reasonable person would lose his her self-control.

The accused also raised self defence which is provided under s253 and s 254 of the Act. Self defence can be a complete defence where the circumstances of the case show that there was an unlawful attack or the attack was imminent on the accused, that the accused’s action were necessary to avert the unlawful attack, that the means he used where necessary in the circumstances and that the harm was directed to the attacker and it was not disproportionate to that which could have resulted from the unlawful attack. In considering these requirements the court must not take an armchair approach. It must consider the subjective circumstances of the accused, any stress or fear that may have been operating in his or her mind. The applicable test is subjective and the court must endeavor to put itself in the shoes of the accused.

Self defence can operate as a partial defence where the court makes a finding that all the requirements of self defence are satisfied save that the means used by the accused to avert the attack were unreasonable. It appears then that in considering the defence the court applies both the subjective test and the objective test. In assessing the reasonableness of the means, the court takes into consideration what a reasonable man in the circumstances of the accused could have done to avert the attack.

Application of the law to the facts

Provocation

It is not in dispute that the issue that caused the marital problems was the alleged infidelity by the deceased. When the accused was teased about his poverty compared to the rich boyfriend he became angry and slapped the deceased. The confession of infidelity and the subsequent bragging that the paramour is rich as opposed to the poverty stricken accused constitutes provocation. It was an affront the accused’s capacity as a man. We accept that the accused was provoked.

In his own words, the accused said his only reaction after being teased was to slap the deceased. We are alive to the fact that the accused might have toned down his reaction to the court. However it is apparent that the anger continued to simmer, that is why he had decided to move out of the matrimonial home even after the uncle had tried to reconcile the two. He would not take any of it. He was done with the marriage.

We do not think provocation would be applicable as a partial defence in this case. We say so because after being provoked the accused did not strangle the deceased. His response shows that he did not lose his mental faculties. He simply slapped her. His conduct after provocation did not lead to any act that resulted in the death of the deceased. However we accept that, there is no way that provocation could have disappeared, it remained simmering in his heart. In these circumstances provocation can only be mitigatory.

Self Defence

The accepted evidence is that the unlawful attack by the deceased on the accused using the scissors on two occasions was averted by the accused. We also accepted that if the accused was ever held by the testicles the unlawful attack had been averted at the time the accused strangled the deceased. The danger was no longer subsisting neither was it imminent the deceased was now facing the other side and her hands could not have held the accused’s testicles.

We appreciate that private parts are very sensitive parts of the body, some fear might have gripped the accused which led him to react in that manner. However the means he used were not reasonable in the circumstances. At the relevant time the deceased was not armed, she was facing away from the accused, he could have left the room. He did not, he opted to continue holding the deceased by the neck until, and according to his words he held the deceased until he could feel no movement from the deceased. It is then that he panicked and phoned the deceased’s sister.

In the result we find that the accused was under an unlawful attack from the deceased, but the means he used to avert the attack were unreasonable in the circumstances. The accused did not have the actual intention to cause the deceased’s death but was reckless as to the risk of death occurring when he strangled the deceased until she lost consciousness.

The fact that the accused left the deceased still alive even if it is accepted does not exonerate him. He was the factual cause of the death as he admitted having strangled the deceased. The post mortem report confirmed that the cause of death was strangulation. It matters not that the deceased died immediately or some hours later. The fact is the accused’s conduct is the direct cause of the death.

The court determined that the accused strangled the deceased person in circumstances where he foresaw the real risk or probability that his actions could result in serious injury or death but proceeded in his conduct despite the realization. Accordingly the accused is found not guilty of murder with actual intention as defined in section 47(1) (a) of the Act but found guilty of murder with constructive intention as defined in section 47(1) (b) of the Act.

Sentence

In mitigation the court considered that the accused is a first offender. He has lived the better part of his life with no brush with the law. He was arrested in 2020 and the case has been hanging over him for over a year and his life was in limbo. The mere fact that he caused the death of his wife is a lifetime sentence. He will live with the guilt forever. He will live with the stigma from both the family and society in general. Besides the attendant stigma the accused has indeed disgraced himself unnecessarily.

We were told that the accused had two wives, the deceased was the second wife. He has ten children. He had three  children with the deceased,  of which two are still minors. These children have already lost one parent they now look to the father as the remaining parent. The accused was contrite he indeed showed remorse and regretted his conduct. We were urged to temper justice with mercy particularly in view of the provocation in this case. Mr Muvhami proposed that a sentence of between 1 and 3 years would meet the justice of this case.

Domestic violence cases have remained a cause for concern and courts must play its part in the fight against domestic violence. It is highly aggravatory that the accused caused the death of his wife. In as much as the accused has remained as the only parent, he has not been a proper role model by hic conduct. Murder is a serious offence. A sentence of imprisonment is unavoidable.

In this case provocation is highly mitigatory.

The accused is sentenced to 13 years imprisonment.

National Prosecuting Authority, The State’s legal practitioners.

Mugiya Muvhami Law Chambers , respondent’s legal practitioners.