THE State V Jisinawu Mathew Taurai

### Preamble
1
HMT 82-19
CRB 37/19
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THE STATE

versus

JISINAWU MATHEW TAURAI

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 17, 19 and 24 September 2019, 3 and 9 October 2019

Criminal Trial

ASSESORS:	1. Mr Chipere

2. Mr Mudzinge

M Musarurwa, for the State

Mrs M Mandingwa, for the Accused

MWAYERA J: The accused and deceased were husband and wife. In a domestic violence related matter the deceased lost her life due to physical abuse at the hands of her husband the accused. The accused was arraigned before this court on a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The charge is that on 31 October 2018 at Jisinawu Homestead, Village 51 B Charenzva, Headlands, the accused assaulted the deceased with a stick and the deceased sustained severe injuries from which she died the following day at Rusape General Hospital. A post mortem was conducted and the doctor compiled a report tendered as exh 1 by consent. The cause of death was due to severe brain oedema and brain haemorrhage, cervical damage in the vessels and central nervous system and cervical laxation. The accused pleaded not guilty to murder and pleaded guilty to culpable homicide.

The accused in his defence pointed out that on the night preceding the fateful morning he had been heavily drinking both eagle lagers and illicit teku teku brew to the extent that he lacked the requisite intention, knowledge or realisation of the unlawfulness of his action. The accused had no recollection of how he assaulted his wife whom he alleged he could have pushed and she fell on the rocks at the homestead resulting in the fatal injuries. The State could not accept the plea of guilty to culpable homicide hence the matter proceeded to trial.

The State tendered the following exhibits by consent post mortem report exh 1, confirmed warned and cautioned statement exh 2, certificate of weight of a stick recovered from the scene exh 3, 8 photographs depicting the remains of deceased during post mortem examination exh 4, the stick relating to certificate of weight exh 5 and the clothes which were worn by the deceased namely t-shirt, skirt, petticoat and panties exh 6. Also tendered as exhibit 7 by consent by the defence was an empty teku teku beer bottle for purposes of illustrating the 40% alcohol content of the brand. We must comment at this stage that it is not in dispute that the small stick produced in court was just at the scene and indicated by the accused as being at the scene but was not the stick used to assault the deceased. This was clear from the accused as well as State witnesses’ version, and also the nature and extent of injuries.

The State adduced evidence from 11 witnesses 9 of whom had evidence formerly admitted by consent in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The evidence of these witnesses was on common cause aspects and not contentious. Two witnesses namely Wallace Chigwaze and Emilia Muhenyere gave oral evidence.

Wallace Chigwaze a juvenile narrated that he observed the deceased emerge from her house with the accused following as if pursuing her. The witness told the court that accused was holding a stick much bigger than what was tendered in court as exh 6. Although the witness could not say with certainty the thickness of the stick, his evidence that a much bigger stick was used is reliable moreso when one considers the nature of injuries sustained by the deceased. In any event even the accused in his evidence clearly gave the impression that another stick could have been used to assault the deceased as he had picked exh 6 in speculation. The witness Wallace Chigwaze also told the court that he observed the accused who dropped the stick and proceeded to chock the deceased by grabbing the throat and or neck at the same time. During the scuffle the witness’s attention was drawn to the scene by obscenities which the accused was shouting towards the deceased while at the same time threatening to kill the deceased.

Worth noting is the fact that the same obscenities and threats were also heard by the State witnesses Kupakwashe Mudadi and Otilia Nerwande. Generally the witness Wallace Chigwaze impressed the court as an innocent by stander who observed the attack on the deceased by her husband. He confined himself to the outside events which he witnessed and did not seek to comment on what transpired earlier indoors. The witness’s evidence remained intact even after cross examination he impressed the court as an honest and credible witness. He said it as it is even in describing the general campus status of accused’s homestead. He did not hide that there were some rock outcropping. The witness gave evidence well.

The second witness who gave oral evidence Emilia Muhunyere was also candid. Her testimony was beyond reproach. The witness confined herself to what she observed and her testimony was not tainted with exaggerations. She did not witness the actual assault on the deceased by the accused. She observed from across the field while at her own homestead. Her attention was roused by observing the deceased crawling in the fields. She went out to inquire what was happening. Upon arrival she saw the accused who advised her to go and see her friend. The witness observed that the deceased had been severely injured and had soiled her clothes by defecating and urinating. She also observed that the deceased’s right hand and leg were weak. The deceased told her that she had been assaulted and could not say anything further. With the help of the accused the witness carried the deceased from the field.

She cleaned the deceased and was given change of clothes by the accused. Thereafter the deceased was ferried to Rusape General Hospital where she passed on. The witness observed that the deceased had been injured and the deceased told her she had been assaulted. She could not say whether the accused was drunk on the day in question but she had seen the accused come back home the previous evening around 4pm and 5pm drunk. She knew the accused drank beer but could not say whether or not he was drunk on the morning in question. The witness however told the court that if the accused was drunk she could have noticed as she had in the past including the previous evening when she had seen him drunk. She was well known to the accused such that if he was drunk she could have discerned. It was apparent from the witness the accused assisted her and attended to his injured wife. There is nothing to criticise about the manner the witness testified. She gave her evidence well.

The accused in turn maintained he had no clear recollection of what he did or how he allegedly assaulted his wife. He was adamant that in his drunken state he could have pushed his wife and she fell on rocks resulting in fatal injuries. During cross examination the accused was however exposed of selecting what to recollect and what not to recollect. For example he was aware he had an altercation with his wife over beans and maize crop which had been grazed. He was aware he went for a beer drink partook eagle lager and teku teku brand. He was further aware he come back home around 5pm. He was also aware there was a stick he used but not necessarily exh 6 produced in court. He was further aware the State witness Emilia Muhenyere confronted him upon seeing the deceased crawl in the field.

Further he was aware the deceased was injured and that he assisted the State witness in having deceased ready to be taken to hospital. What he seemed unaware of was how deceased sustained the fatal injuries while at the same time stating that she fell on rocks. The accused did not impress the court as being genuine and sincere especially when one considers his confirmed warned and cautioned statement. Wherein accused giving another version stated:

“I do not admit to the charge levelled against me of murdering my wife Irene Sharara. I had a misunderstanding with my wife over the beans and maize which were grazed at the garden by cattle which resulted on her condition deteriorating since she suffers from high blood pressure and chest pains. I did not hit my wife with a stick which I was holding but I was using the stick to threaten her that I would use it to hit her with it. I think my wife died as a result of her illness since we worked hard together or maybe she panicked when I threatened her with a stick.”

The accused oscillated from saying his wife fell on a rocky surface to saying she suffered from high blood pressure and chest pains and or that she panicked his assault threat. The accused was not credible in his narration of events of the day in question. What is apparent however is that the accused having quarrelled with his wife about the maize and beans went for a beer drink and then came back home. Assuming he had partaken of alcohol inclusive of the 40% alcohol content teku teku illicit brew, the accused had knowledge and appreciation of what he was doing. More so when one considers that when the accused partook the beer he already had it in mind he wanted to discipline his wife over the devoured crop. He went back home between 4pm and 5pm and he knew he brought a bottle of beer. The fatal assault occurred the following morning and even if accused was drunk the previous night in the morning his state could have changed for better state of sobriety. In any event the accused was not forced or compelled to imbibe the alcohol but made a free choice and then came back and pursued the agenda of “disciplining” his wife as discerned from his utterance heard by witnesses when the deceased exited the house and accused still pursued her. She was injured by the physical assault till she ended up crawling in the field from which she had to be assisted back by Ellen and accused. Medical attention was futile as the deceased succumbed to the assault induced injuries and passed on. Generally as a witness the accused was not reliable and credible.

The offence of murder which the accused is facing requires both the unlawful action and intentional killing of another for it to be established. See State v Lovemore Kurangana HH 267/17. From the totality of the evidence adduced the court is to assess whether or not the state has proved beyond reasonable doubt that the accused unlawfully and intentionally killed the deceased. That the accused assaulted the deceased severally and severely has been established by evidence of the state witness and the post mortem report confirms intensity and multiplicity of attack resulting in the fatal consequences. The attack on the deceased by the accused caused her to have multiple injuries inclusive of a broken leg, broken arm, brain damage and collapse of the central nervous system. Such injuries are certainly consistent with use of a stick bigger than the small stick which accused indicated. The multiplicity of injuries shows that force was exerted all over and that taints accused’s suggestion that he just pushed the deceased and she fell on rocks at the homestead. This assertion was in our view raised in to minimise the assault exerted by accused.

The accused went further to plead intoxication. The accused sought to portray that he was so intoxicated that he had no control of his mental faculties thus he lacked the intention to kill. We must point out that our assessment of events and occurrences before, during and just after the severe and fatal assault are at a complete tangent with the suggestion by the accused of not having control of his mental faculties. It has been demonstrated the accused drank the previous evening and he went home between 4pm and 5pm. For him to suggest he was not in control or appreciation of on goings the following day is just hiding behind a finger in the face of overwhelming evidence moreso given he was not a new drinker. The accused proceeded to partake of alcohol voluntarily after an altercation with his wife. He came back home and actually knew his home without help from anyone. It was not his first time to partake of the liquor in question. The accused carried on from where he had left the previous day and assaulted the deceased. This is conduct consistent with planning to take action against another and then proceeding to partake alcohol as a way of gathering courage to accomplish the action. See s 223 (1) (a) and (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In this case whereas we cannot say accused set out with an aim to kill the deceased and proceeded to fulfil his desire, we can however easily infer legal intention from the manner in which the offence was committed. The fact that the accused had partaken alcohol does not mean he was intoxicated to the extent of lacking the requisite intention for the accused had knowledge and realisation. The witness Ellen Muhenyere who was a neighbour was assisted by the accused in attending to the injured wife now deceased. She knew accused well and if he was excessively drunk she could have given evidence to that effect. If anything the accused’s conduct of carrying the deceased back to the yard and giving change clothes is consistent with someone appreciating the situation around them. The accused had some issues with the deceased as amply demonstrated in his warned and cautioned statement, crops had been grazed and he took issue with the deceased. He decided to drink so as to have zeal to deal with his wife. The manner in which the accused assaulted the deceased given the extent of injuries and the body parts aimed at in this case inclusive of the head, speak volumes to the existence of intention. See S v Zorodzai Moyo HMA 16/17 in which the court emphasised that intention to kill can be inferred from the intensity of the attack on the deceased. In this case the vicious and intense attack on the deceased leading her to soiling herself leads to one conclusion that the accused realised that there was a real risk or possibility that the now deceased would die but continued to engage in that conduct oblivious of that risk or possibility. The accused may escape liability of murder with actual intention but is certainly liable for murder with legal intention. Further in his defence of intoxication cannot be sustained as such he cannot escape liability. A close look at the relevant provisions reveals for this case that there is no defence.

Section 223 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] reads as follows:

“Notwithstanding any other provision of this Code, if a person becomes voluntarily intoxicated realising that there is a real risk or possibility that he or she will, in his or her intoxicated condition, engage in any conduct for which he or she may be held criminally liable, he or she may be convicted of the crime constituted by the conduct on the basis of his or her original realisation, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned.”

In this case accused set out to partake of alcohol so as to come back and confront his wife about the grazed crop. That behaviour does not remove the realisation of risk. The accused was in control of his faculties when he engaged in assaulting the deceased viciously. The accused realised the risk or possibility of death ensuing from his conduct but despite the realisation of such risk he continued with the conduct. The state has clearly established legal intention and it properly rejected the plea of guilty to culpable homicide. In the case of S v Musina 2010 (2) ZLR 498, it was emphasised that intoxication in circumstances where the individual does not lose self-control and is capable of formulating an intention is not a defence to murder. See also State v James Chishakwe HH 17/18.

In this case the accused knew what he was doing when he subjected the deceased to severe and vicious assault up to a point of deceased not managing to walk but crawl. Such manner of assault clearly paints realisation of risk and possibility of death occurring but nonetheless persistence with such conduct thereby causing death.

The accused is accordingly found guilty of murder with constructive intention as defined in s 47 (1) (b) of the Criminal Code.

Sentence

Murder emanating from domestic violence is prevalent in this country. Murder is a heinous offence which is committed against humanity as clearly the right to life is a God given right which is constitutionally guaranteed. Deterrent sentences are called for in order to deter people of violent disposition who feel they can resolve all domestic disputes by displaying their physical prowess. This murder depicts gender based violence in which a woman lost her life for crops grazed by cattle simply because she is a woman. She had to pay for the sins of cattle. The manner in which the deceased was assaulted even when she tried to make good her escape and was pursued is indicative of cruelity. The deceased was severally and severely assaulted to the extent of sustaining multiple injuries among others broken leg, hand and haemorrhage infiltrating the eye. She died as a result of severe brain oedema and brain haemorrhage, cervical damage in vessels and central nervous system and cervical laxation. The deceased ended up soiling herself by defecating and urinating due to severe assault.

The assault was brutal and inhuman given the over 30 years duration of marriage. The accused showed no respect at all for his wife the mother and grandmother of his children. He planned to partake alcohol so as to viciously attack the deceased. The courts have to pass appropriate sentences so as to send the message loud and clear that if one cannot control themselves then they should not partake of alcohol. It should be human beings drinking beer and not the beer drinking people in a civilised society. One cannot cry foul after their own voluntary intoxication. The deceased lost her life unnecessarily because of the accused’s recklessness and irresponsible conduct. What further aggravates the offence is the non-disclosure of the murder weapon.

However, in assessing sentence we have considered all mitigatory factors submitted that the accused regrets the violent offence and that he will indeed live with the stigma of having killed his wife. The accused has been in custody for over a year awaiting the finalisation of the matter. Accused has shown he regrets committing the offence as evidenced by his plea albeit to culpable homicide. Accused is also fairly old 67 and indeed punishment should not be that which will break the offender but that which matches the offence and also ensures justice is done while giving accused chance to reform.

20 years imprisonment.

National Prosecuting Authority, State’s legal practitioners

Mhungu & Associates, accused’s legal practitioners