THE State V Lameck Mhako

### Preamble
1
HH 315-12
CRB 108/12
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THE STATE

versus

LAMECK MHAKO

HIGH COURT OF ZIMBABWE

MUSAKWA J WITH ASSESSORS

HARARE, 12, 13, 16, 17 and 20 July 2012

Criminal Trial

E Mungoni, for the State

T Hungwe, for the accused

MUSAKWA J: The accused was charged with contravening s 47 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. He tendered a plea of not guilty.

The facts are that the deceased was the accused’s daughter and she was aged seven years. Between 21 and 23 September 2011 the accused assaulted the deceased with a bamboo stick. The deceased sustained injuries which the accused treated using some herbs. The deceased succumbed to the injuries on 28 September 2011. The post-mortem report noted that the deceased had cuts, grazes and bruises all over the body, with internal bleeding. The cause of death was given as multiple body injuries caused by assault resulting in internal bleeding and possible renal failure.

The accused’s defence was to the effect that on the day of assault he received a report that the deceased had defecated in the communal well. He then cleaned the well. Thereafter when the deceased came home he chastised her with a stick. In the process the deceased extricated herself from the accused’s grip. As she ran away she fell down and sustained injuries to her elbow. According to the accused normal family life resumed until the deceased died a week later.

The broader facts being common cause, the court will not go into greater detail in respect of the evidence.

Doctor Siamuchembu who conducted the autopsy testified. He did not conduct an internal examination as they did not have specialised equipment for that purpose. It was his evidence that the cuts on the deceased’s body were not deep. On why he stated renal failure as a possible cause of death, he stated that bleeding of tissues releases myoglobin which may enter the blood stream and clog normal kidney functions. The deceased could have survived had she received appropriate medical attention. For example, he explained that the deceased could have been placed on dialysis or she could have been administered with a drug that enhances urine production.

Chenai Mhako the teenage daughter of the accused also testified. Although she was not specific on the dates she said the accused assaulted the deceased on two separate occasions. The first such assault was on a Friday whilst the second incident was on a Thursday. She mentioned the use of booted feet as well as a stick. Her testimony gave the impression that the assaults happened on several occasions. This is because when she was asked if they reported the assaults she replied that when they reported to an uncle and grandparents the accused threatened them.

Chenai also gave a different reason for the deceased’s assault. She explained that as the accused assaulted the deceased he claimed that she was not his daughter. She also stated that on the second occasion their step-mother was present. When the step-mother remonstrated with the accused the latter shouted at her. She then went away and spent the night at her parents’ home.

The witness also stated that on the second occasion the deceased spent the night groaning in pain. The accused told her to shut up as she was making noise.

From this witness’s testimony it was also clear that she did not observe the first assault she alluded to. She stated that when they returned from the well they found the deceased crying. The deceased then reported that she had been assaulted by the accused.

Freddy Mufunga a neighbour of the accused also testified. He estimated that his home is about one hundred meters from that of the accused. He stated that he saw the accused assaulting the deceased on two occasions. On those two occasions he said he informed members of the village committee.

He mentioned the assault that occurred on a Friday. He said he saw this from his home. It looked like the accused was using a stick. The accused’s wife was present. He then cautioned the accused against beating the child. The accused is said to have replied that it was not his child and if the deceased died he should not attend the funeral. It turned out the accused’s utterances proved true as the deceased subsequently died.

The accused also gave evidence. He amplified his defence outline. He maintained that he never disputed the deceased’s paternity. He confirmed using a bamboo stick to assault the deceased. We did not hear why he had to use such weapon to assault the deceased. Suffice to note that the accused gave the impression that the assault was of short duration as he said he assaulted the deceased for about two to three minutes.

The accused seemed to ascribe some of the injuries sustained by the deceased to her falling down as she escaped from the beating. Primarily this is in reference to the injury to the elbow. He also stated that there was nothing unusual from the day of the assault until the deceased died. The accused also disputed making the utterance attributed to him by Freddy Mufunga. He also denied threatening Chenai. The accused also claimed that although he gave a warned and cautioned statement in which he admitted the assault he disputed some of its contents. When he did so, he was threatened by the recording detail. The warned and cautioned statement was confirmed by a magistrate and no issue was taken regarding the confirmation process.

Rashy Zacharia, the accused’s wife also testified as a defence witness. It must be noted that initially she was meant to testify as a State witness. There was the legal hurdle that she is not a competent and compellable witness to testify against her husband in terms of s 247 of the Criminal Procedure and Evidence Act [Cap 9:07]. Nonetheless there had been an indication that the defence intended to waive the privilege. This is understandable as this witness gave evidence that was largely favourable to the accused.

The witness denied having witnessed the fatal assault. She said on that particular day she had a misunderstanding with the accused in connection with a traditional ceremony she was supposed to attend at her parents’ home. As a result she did not sleep at home. She did not state she was threatened by the accused. When she returned the following morning she learnt that the deceased had been assaulted the previous day.

This was generally not a truthful witness. It must be noted that both Chenai and Freddy Mufunga told the court that she was present when the deceased was assaulted. Why would these witnesses lie in this respect? Why the coincidence that she slept at her parents’ home during that night.

In any event, during her evidence in-chief she had evidently lied that the deceased had never been assaulted in her presence. Yet under cross-examination she admitted that there was an occasion when the deceased had been assaulted for refusing to bath after they had been panning at the river. She said a switch had been used.

The witness became emotional when she was answering questions paused by the court. She sought to volunteer additional reasons why the deceased was assaulted despite the fact that she claimed not to have been present.

Both the State and defence undertook to file written submissions on 19 July 2012. However it is only state counsel who filed his submissions on 18 July. The defence’s closing submissions must have been filed late on 19 July because they were only referred to me this morning.

In his closing submissions Mr Mungoni urged the court to return a verdict of murder with constructive intent.

The warned and cautioned statement by the accused states as follows-

“Yes I admit the charge being levelled against me. I assaulted the now deceased as a way of chastising her sine she was my daughter and that she had defecated in a water well from where the whole community get drinking water. I assaulted her too severely with a bamboo stick on her buttocks and back until she defecated in her pants because she got seriously injured on positions I had assaulted her. The now deceased then managed to break free and when she was running away, she fell down and she got seriously injured on her face. From the day I assaulted the now deceased she never went to hospital or clinic to seek medical treatment because I was treating her using traditional herds. We woke up and found that my daughter had died in the morning of the 28 September 2011 but I had assaulted her on 21 September 2011. That is all.”

Section 256 of the Criminal Procedure and Evidence Act provides that:-

“(1) 	Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest, or after committal and whether reduced into writing or not:

Provided that—

a certified copy of the record produced in terms of subs (1) of s 115B shall be admissible in evidence against the accused;

any information given under any enactment which provides a penalty for a failure or refusal to give such information shall not, on that account alone, be inadmissible.

(2) 	A confession or statement confirmed in terms of subs (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof:

Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and if, after the accused has presented his defence to the indictment, summons or charge, the

prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.

(3) 	If in any confession or statement made or evidence given by an accused person which would otherwise be admissible there is contained matter which may be prejudicial to the accused and which is not relevant to the charge preferred against him, the prosecutor may delete such matter from the confession, statement or evidence, as the case may be, and such confession, statement or evidence, as the case may be, shall be admissible against such accused person:

Provided that no confession, statement or evidence from which any matter has been deleted shall be adduced or received in evidence unless a copy of the confession, statement or evidence from which such matter has been deleted has been served upon the accused and he has not, within five days of such service, demanded that the

whole or part of any matter so deleted shall be included in the confession, statement or evidence if it is adduced in evidence by the prosecutor.

(4) 	If an accused person demands that the whole or any part of any matter referred to in subs (3) shall be included.”

Mr Mungoni referred to s 16 of the Code in relation to whether or not the accused person was merely grossly negligent in his conduct. The provision states that-

“(1) Where negligence is an element of any crime

constituted by the performance of an act, the test is objective and consists of the inquiry whether the accused person’s performance of that act was blameworthy in that:

a reasonable person in the same circumstances as the accused would not have

performed that act;

or

(ii) 	the accused failed to perform the act with the care and skill with which a reasonable person in the same circumstances would have performed that act; whichever inquiry is appropriate to the crime in question; or

(b) 	constituted by the omission to perform an act, the test is objective and consists of the inquiry whether the accused person’s omission to perform that act was blameworthy in that a reasonable person in the same circumstances would not have omitted to perform the act; or

(c)	 constituted wholly or partly by a consequence resulting from the conduct of an accused person, or by the existence or absence of any circumstance in which such conduct occurred, the test is objective and falls into two parts:

whether or not the accused person failed to realise that his or her conduct might produce the relevant consequence or that the relevant circumstance might exist or be absent; and

if the accused person did fail as provided in subpara (i), whether or not the person’s failure was blameworthy in that a reasonable person in the same circumstances:

would have realised that the relevant consequence might be produced and would have guarded against it; or

would have realised that the relevant fact or circumstance might exist or be absent and would have taken steps to ascertain whether or not it did exist; as the case may be.

(2)	For the avoidance of doubt it is declared that para (c) of subs (1) shall apply to the determination of the criminal liability of any person accused of culpable homicide, negligently causing serious bodily harm or negligently causing serious damage to property.”

Since Mr Mungoni’s contention is that the accused should be found guilty of murder one would have thought that he should have referred to s 15 instead. That provision states that-

“(1)	Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components:

a component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that:

(i) 	his or her conduct might give rise to the relevant consequence; or

(ii) the relevant fact or circumstance existed when he or she engaged in the conduct; and

a component of recklessness, that is, whether, despite realising the risk or

possibility referred to in para (a), the person whose conduct is in issue

continued to engage in that conduct.

(2)	If a crime of which the realisation of a real risk or possibility is an element is so defined in this Code or any other enactment that:

the words describing the component of awareness are omitted, the component of awareness shall be implicit in the word “recklessly” or any derivatives of that word; or

the words describing the component of recklessness are omitted, the

component of recklessness shall be implicit in the expression “realise a real risk or possibility” or any derivatives of that expression.

(3)	Where, in a prosecution of a crime of which the realisation of a real risk or possibility is an element, the component of awareness is proved, the component of recklessness shall be inferred from the fact that:

the relevant consequence actually ensued from the conduct of the accused;

or

the relevant fact or circumstance actually existed when the accused engaged in the conduct; as the case may be.

(4)	For the avoidance of doubt it is declared that the test for realisation of a real risk or possibility supersedes the common-law test for constructive or legal intention and its components of foresight of a possibility and recklessness wherever that test was formerly applicable.”

In his closing submissions Mr Hungwe contended that the State failed to prove its case beyond a reasonable doubt. In support of this contention he further submitted the following:  The State failed to prove any motive on the part of the accused why he would want to kill his own daughter. The State also failed to prove that the accused acted negligently in failing to seek medical intervention when the deceased’s condition deteriorated. That the defence’s version could reasonably possibly be true taking into account the inconclusiveness of the post-mortem report. In support of this submission he cited the case of S v M 1946 AD 1023.

Finally Mr Hungwe submitted that the accused does not bear any onus to prove his innocence. Rather, he merely has to place before the court a defence that raises triable issues and in this case he has cast a doubt on his liability.

The starting point to note is that according to s 15 (1) of the Constitution of Zimbabwe-

“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

However, s 15 (3) provides derogations from that provision by stating that-

“No moderate corporal punishment inflicted—

in appropriate circumstances upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis or in whom are vested any of the powers of his parent or guardian; or

in execution of the judgment or order of a court, upon a male person under the age of eighteen years as a penalty for breach of any law; shall be held to be in contravention of subsection (1) on the ground that it is inhuman or degrading.”

Therefore, there is no denying that the accused was entitled to inflict moderate corporate punishment on the deceased as part of his parental responsibilities. However, taking into account the injuries sustained by the deceased, there is no doubt that the accused exceeded the bounds of moderate corporal punishment as envisaged in the Constitution. The question to determine is whether he exceeded such bounds with intent to kill or did so negligently.

In respect of the requirements for constructive intent which has been replaced by the term realisation of risk or possibility in the Code, Mr Mungoni cited the cases of S v Chikukutu 1996 (1) ZLR 702 (S) and S v Gumbi 1994 (2) ZLR 323 (S). In dealing with the concept of constructive intent McNALLY JA in S v Gumbi supra had this to say at 326-

“Constructive intent to kill is not an easy concept to apply to a set of facts, especially when a gun is involved. The difficulty arises in separating the facts, on the one hand from those which show an actual intent to kill, and on the other from those which show negligence in shooting which falls short of recklessness.

We are not concerned in the present case with an actual intent to kill. We are concerned with the other distinction, between mere negligence and negligence so gross as to amount to recklessness. Mere negligence cannot found an intent to kill. Compare S v Ndlovu S-131-90 (not reported) and S v Henderson S-17-84.”

The learned Judge of Appeal further went on to say at 327:

“The point, in essence, is that there must be more than negligence and even more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. As was said by BEADLE AJ (as he then was, having retired as Chief Justice) in R v Kadongoro 1980 ZLR 54 (G) at 55B:

‘It seemed to me that the magistrate was clearly wrong in confusing dolus eventualis with gross negligence ...’"

There must be, in the mind of the accused person, what has been called "a volitional component". See the judgment of JANSEN JA in S v Ngubane 1985 (3) SA 677 (A) at 685D. In other words he must, in effect, say to himself "I know I may kill this person if I shoot. But I am going to shoot anyway".  As JANSEN JA went on to say:

"Our cases often speak of the agent being 'reckless' of that consequence, but in this context it means 'consenting', 'reconciling' or 'taking into the bargain', and not the 'recklessness' of the Anglo-American systems, nor H an aggravated degree of negligence."

See also Ex p Minister van Justice: In re S v Sauk 1992 (4) SA 804 (A) at 808A.

Coming to the present matter, notwithstanding the accused’s entitlement to chastise the deceased, there was no justification in the use of a bamboo stick. The warned and cautioned statement states that he assaulted the deceased severely until she defecated. The accused did not desist from assaulting the deceased voluntarily. Rather, it is the deceased who managed to break free from his grip and run away.

We also take into account the evidence of Freddy Mufunga who cautioned the accused as he assaulted the deceased. The accused retorted that he was disciplining his child and that if the child died Freddy should not attend the funeral. The accused must have realised that there was a real risk or possibility that his conduct may cause death but nonetheless continued in such conduct despite that risk or possibility.

The absence of ill-motive on the part of the accused is not a legal requirement in a case of murder. In addition, the medical evidence is coherent enough even without an internal examination having been conducted. The stark facts of this case are that an otherwise healthy child succumbed to death after sustaining injuries from an assault perpetrated by the accused. In the circumstances the exact cause of death is immaterial. Were it not for the assault would the deceased have died in the manner described ?

Accordingly, the accused is found guilty of contravening s 47 (1) (b) of the Code.

Attorney General’s Office, for the State

Venturas & Samukange, accused’s legal practitioners