Diminished responsibility https://old.zimlii.org/taxonomy/term/10111/all en S v Fernandes (HB 85-21, HC (CRB) 117/20) [2021] ZWBHC 85 (26 May 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/85 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 85/21</p> <p>HC (CRB) 117/20</p> <p> </p> <p><strong>THE STATE </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>CHARNO FERNANDES </strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J with Assessors Mr Matemba and Mrs Sithole</p> <p>GWERU 26 MAY 2021</p> <p> </p> <p><strong>Criminal Trial</strong></p> <p><em>M. Shumba, for the State </em></p> <p><em>Mrs L Mavhondo, </em>for the accused</p> <p> </p> <p>            <strong>DUBE-BANDA J:    </strong>The accused appears in this court on a charge of murder.  Before the charge was put to the accused, Ms <em>Mvura-Mavhondo,</em> counsel for the accused informed the court that she had an application to make. The import of the application is that the accused be referred for further mental examination in terms of section 28 of the Mental Health Act [Chapter 15:12]. The basis of the application is that there are indications that accused suffers from a mental disorder or defect of the mind, such that at the time of the commission of this offence he was not fully aware of the consequences of his actions.</p> <p> </p> <p> Upon receiving instructions to provide <em>pro-deo</em> legal representation to the accused in this matter, she attempted on two occasions, i.e. on the 9th April 2021 and 19th May 2021, to take instructions for the purposes of preparing for trial.The first consultation on the 9th April 2021, lasted for 1 hour 30 minutes, counsel informed the court during the interview, accused was moving all over the place. He was fidgeting and incoherent. The second consultation, i.e. on the 19th May 2021, lasted 30 minutes, counsel says due to the erratic behaviour of the accused, she was again not able to take instructions to prepare for trial. Further, accused disclosed to counsel, that prior to his arrest, he was taking the following medication: chloroponomazine and benzisozazole. First, chloroponomazine is a medication used to treat psychotic disorders such as schizophrenia, second, benzisozazole is medication that regulates mood and behaviour. Mr <em>Shumba</em>, state counsel informed the court that state witnesses confirmed during interviews that accused suffers from a mental disorder. State counsel then supported the application for a further examination.</p> <p>State counsel further informed the court that accused had been examined by a Psychiatrist, who opined that at the time of the commission of the offence, the accused was not mentally disordered and that he is fit to stand trial. This report is before court and marked Exhibit 1. Notwithstanding this psychiatrist report, counsel submitted that a further mental examination of the accused is necessary and is required.</p> <p>Notwithstanding the psychiatrist’s report, on the totality of the factual material before this court, the court is unable to conclude whether or not the accused person is mentally disordered or intellectually handicapped, or whether he would be able to understand the nature of the proceedings or properly conduct his defence. A court cannot conduct a criminal trial for an accused person who might be mentally disordered or suspected to be suffering from mental disorder. A court cannot reach a finding of criminal non-responsibility without hearing expert evidence. The court has to be guided by the specialist medical evidence as to the mental status of the accused. Therefore, further specialist examination is necessary to ascertain accused’s mental status.  In the result, the court makes the following order:</p> <ol> <li>The accused is hereby returned to prison pending transfer to Mlondolozi Special Institution for further examination and treatment in terms of section 28 of the Mental Health Act [Chapter 15:23].</li> <li>An Electroencephalogram (EEG) examination to be conducted on the accused.</li> </ol> <p> </p> <p><em>National Prosecuting Authority,</em> state’s legal practitioners</p> <p><em>Gundu, Dube, Pamacheche and Partners</em>, accused’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/85/2021-zwbhc-85.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18263">2021-zwbhc-85.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/85/2021-zwbhc-85.pdf" type="application/pdf; length=296736">2021-zwbhc-85.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mental-disorders-see-criminal-law-defences-insanity-and-criminal-procedure-verdict">MENTAL DISORDERS See CRIMINAL LAW Defences (Insanity) and CRIMINAL PROCEDURE (Verdict - special verdict)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Thu, 17 Jun 2021 08:47:35 +0000 Sandra 10062 at https://old.zimlii.org S v Hove (HB 88-21, HC (CRB) 21/21) [2021] ZWBHC 88 (17 May 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/88 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB  88/21</p> <p>HC (CRB) 21/21</p> <p> </p> <p><strong>THE STATE </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>NEWTON HOVE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J with Assessors Mr Matemba and Ms Baye</p> <p>GWERU 17 MAY 2021</p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p> </p> <p><em>Ms N Chikuni, for the State </em></p> <p><em>T Kamwemba, </em>for the accused</p> <p> </p> <p>                <strong>DUBE-BANDA J: </strong>The accused appears in this court on two counts of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform) Chapter 9:23.In count one, it being alleged that on the 8th January 2020, and at Village Madhiye, Chief Mazvihwa, Zvishavane, in the Province of Midlands, accused unlawfully caused the death of Blessed Hove (deceased 1) by striking her with an adze and stabbing her several times on the face, neck, legs, hands, stomach and back, intending to kill her or realising that there was a risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.</p> <p>In count 2, it is alleged that on the 8th January 2020, and at Village Madhiye, Chief Mazvihwa, Zvishavane, in the Province of Midlands, accused unlawfully caused the death of Tanaka Kufa (deceased 2) by striking him with an adze and stabbing him several times on the chest, stomach, neck, abdomen and face legs, intending to kill him or realising that there was a risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.</p> <p>The accused through his defence counsel has tendered a plea of not guilty and averred that at the time of the alleged offence the accused was suffering from mental disorder.  It is contended that he may not be held criminally liable as he was suffering from a mental disorder at the material time.</p> <p> The State tendered into the record of proceedings a statement of agreed facts, which is before court and marked Annexure A. The agreed facts are as follows:</p> <p> </p> <ol> <li>Newton Hove (accused) was aged 30 years at the time of commission of the alleged offence. He resides at Village Madhiye, Chief Mazvihwa, Zvishavane in the Midlands Province.</li> <li>Blessed Hove (deceased 1) was aged 30 years at the time she met her death. Deceased number 1 was accused’s sister and they resided at the same homestead.</li> <li>Tanaka Fufa (deceased 2) was aged 5 years at the time he met his death. The accused is deceased 2’s uncle. Deceased 2 was deceased 1’s son.</li> <li>On the 8th of January 2020, at around 1900 hours, the accused asked for his National Social Security Authority (NSSA) document from deceased 1. The accused wanted to access his funds. Deceased refused to give the accused the documents since the accused is a psychiatric patient.</li> <li>That did not go down well with the accused who responded by striking deceased with an adze and stabbing her with a knife on the face, neck, hip, leg, hands, stomach and back causing her death.</li> <li>After killing deceased 1, the accused proceeded to stab deceased 2 by striking him with an adze on the chest, stomach, neck, abdomen and face several times causing his death.</li> <li>A report was made to the police leading to the arrest of the accused person. Deceased 1 and 2’s remains were taken to United Bulawayo Hospitals where Dr Juana Rodriguez Gregori conducted a post mortem examination. He concluded that the cause of death for deceased 1 was:</li> </ol> <ul> <li>Acute anaemia</li> <li>Hepatic and Kidney laceration</li> <li>Stab wounds</li> </ul> <p>He also concluded that the cause of death for deceased 2 was:</p> <ul> <li>Acute anaemia</li> <li>Pulmonary and hepatic laceration</li> <li>Stab wounds</li> </ul> <ol> <li>The accused was examined by a psychiatrist Dr N Mawere on 22/07/20; 27/07/20 and 12/08/20 at Mlondolozi Special Institution.</li> <li>Dr Mawere concluded that at the time of the commission of the alleged offence the accused was suffering from a mental disorder (schizophrenia and substance induced psychosis). He further stated that the accused was mentally disordered to such an extent that he should not be held responsible for his actions, and that he did not appreciate the wrongfulness of his actions.</li> <li>The accused accepts the evidence of the State witnesses and contents of the post mortem report and psychiatrist report, and that at the time of the alleged offence, he was suffering from a mental disorder to such an extent that he should not be held legally responsible for his actions.</li> <li>The state concedes that the accused was suffering from a mental disorder at the time of the commission of the alleged offence and that it is appropriate for the court to return a verdict of Not Guilty by reason of Insanity in terms of Section 29 (2) of the Mental Health Act Chapter 15:12.</li> </ol> <p>The State further tendered two post mortem reports compiled by a pathologist, Dr Juana Rodriguez Gregori at United Bulawayo Hospitals on the 15th January 2020.  The post mortem report in respect of deceased 1 is marked Exhibit 1. The findings in this post mortem report list the cause of death as: acute anemia; hepatic and kidney laceration; and stab wound. The post mortem report in respect of deceased 2 is marked Exhibit 2. The findings in this post mortem report list the cause of death as: acute anemic; pulmonary and hepatic laceration; and stab wound.</p> <p>A report compiled by a Psychiatrist, Dr Nemache Mawere at Mlondolozi Special Institution shows that the expert opined that at the time of the alleged crime, the accused was mentally disordered, suffering from schizophrenia and substance induced psychosis. He did not appreciate the wrongfulness of his actions. However, he is now fit to stand trial. The Psychiatrist Report is before court and marked Exhibit 3.</p> <p>From the evidence that has been placed before court we are indeed satisfied that the injuries sustained by the deceased 1 and deceased 2 were caused by the accused. The post mortem reports show that the injuries inflicted by the accused caused the death of the two deceased persons.</p> <p>In the circumstances of this case, and having regard to the undisputed evidence before court, it is clear that the accused was suffering from mental disorder at the time of the commission of the offence and as such he cannot at law be held responsible for the two counts of murder. In the circumstances, it is appropriate for this court to return a special verdict, that the accused is not guilty because of insanity.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p>In the result, the court makes the following order:</p> <ol> <li>The accused is found not guilty and acquitted by reason of insanity.</li> <li>The accused is hereby returned to prison pending transfer to Mlondolozi Special Institution for further examination and treatment in terms of section 29(2)(a) of the Mental Health Act (Chapter 15:23).</li> </ol> <p> </p> <p><em>National Prosecuting Authority,</em> state’s legal practitioners</p> <p><em>Tavenhave &amp; Machingauta Legal Practitioners</em>, accused’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> The law provides in regulating the criminal liability of the mentally ill in s 29 (2) of the Mental Health Act. It states:</p> <p> </p> <p>If a Judge or Magistrate presiding over a criminal trial is satisfied from the evidence including medical evidence, given at the trial that the accused person did the act constituting the offence charged or any other offence of which he may be convicted on the charge, but that when he did the act he was mentally disordered or intellectually handicapped so as not to be responsible for the act, the Judge or Magistrate shall return a special verdict to the effect that the accused person is not guilty because of insanity.”</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/88/2021-zwbhc-88.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23094">2021-zwbhc-88.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/88/2021-zwbhc-88.pdf" type="application/pdf; length=310611">2021-zwbhc-88.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Wed, 16 Jun 2021 07:50:21 +0000 Sandra 10059 at https://old.zimlii.org S v Zhou (HB 91-21, HC (CRB) 119/20) [2021] ZWBHC 91 (17 May 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/91 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 91/21</p> <p>HC (CRB) 119/20</p> <p><strong>THE STATE </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>UPENYU ZHOU</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J with Assessors Mr Matemba and Ms Baye</p> <p>GWERU CIRCUIT COURT 17 MAY 2021</p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p> </p> <p><em>M. Ndlovu, for the State </em></p> <p><em>Ms T. Musoso, </em>for the accused</p> <p> </p> <p>            <strong>DUBE-BANDA J: </strong>The accused appears in this court on a charge of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform) [Chapter 9:23]. It being alleged that on the 16th January 2019, and at Jindu River, Village Machovha, Chief Chingoma, Mberengwa, accused unlawfully caused the death of Bhaureni Banda (deceased), by forcing three sticks into the anus of the deceased, intending to kill him or realising that there was a risk of possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility. The accused through his defense counsel has tendered a plea or not guilty and averred that at the time of the alleged offence the accused was suffering from a mental disorder.  It is contended that he may not be held criminally liable for his actions as he was suffering from a mental disorder at the material time.</p> <p> The State tendered into the record of proceedings a statement of agreed facts, which is before court and marked Annexure A. The statement reads as follows:</p> <ol> <li>Upenyu Zhou (accused) was aged 20 years at the time of commission of the alleged offence. He resides at Village Machovha, Chief Chingoma, Mberengwa, Midlands Province.</li> <li>Bhaureni Banda (deceased) was aged 9 years at the time he met his death.</li> <li>The deceased was accused person’s nephew.</li> <li>On the 16th January 2019, at about 1000 hours, the deceased left home to herd goats. The accused came along.</li> <li>At the grazing area, the accused person got hold of the deceased, and forcefully inserted three sticks into the deceased’s anus. This resulted in the death of the deceased.</li> <li>Thereafter the accused placed the body of the deceased into a pond that had water. The accused person sat on a rock that was near the pond.</li> <li>At about 1200 hours, Nyasha Banda followed the deceased and the accused to the grazing area. He found the accused sitting on a rock alone and observed deceased’s body floating on the pond. Nyasha Banda rushed into the pond in an attempt to rescue the deceased, and abandoned the rescue on realizing that the deceased was dead.</li> <li>The matter was reported to the police leading to the arrest of the accused.</li> <li>On the 22nd January 2019, Dr Roberto Lara Diaz examined the remains of the deceased at Bulawayo United Hospitals, and concluded that the cause of death was:</li> </ol> <ol> <li>Septic Shock</li> <li>Peritonitis</li> <li>Three penetrating sticks into the onus.</li> </ol> <p> </p> <ol> <li>The accused was examined by a psychiatrist, Dr. N. Mawere on 30 July 2019; 22 October 2019; and 18 March 2020, at Mlondolozi Special Institution.</li> <li>Dr Mawere concluded that at the time of the commission of the alleged offence, the accused was suffering from a mental disorder (Mental Retardation and Temporal Lope Epilepsy). He further stated that accused was mentally disordered to such an extent that he did not appreciate the wrongfulness of his action.</li> <li>The accused accepts the evidence of the state witnesses and the contents of the post mortem report that at the time of the alleged offence, he was suffering from a mental disorder to such an extent the he should not be held legally responsible for his actions.</li> <li>The State concedes to the fact that the accused was suffering from a mental disorder at the time of the commission of the alleged offence and it is appropriate for the court to return a verdict of Not Guilty by reason of insanity in terms of section 29(2) of the Mental Health Act [Chapter 15:12].</li> </ol> <p>Further the State tendered a post mortem report compiled by a Pathologist, Dr Roberto Lara Diaz at United Bulawayo Hospitals, on the 22nd January 2019.  The post mortem report is marked Exhibit 1. The findings in the post mortem report list the cause of death as: septic shock; peritonitis; and three penetrating sticks into the anus.</p> <p>A report compiled by a Psychiatrist, Dr Nemache Mawere at Mlondolozi Special Institution shows that the Electroencephalogram (EEG) report confirmed evidence of seizural activity in the brain of the accused (Abnormal EEG). The expert opined that at the time of the alleged crime, the accused was mentally disordered, i.e. suffering from   (Mental Retardation and Temporal Lope Epilepsy). He did not appreciate the wrongfulness of his action. However, he is now fit to stand trial. The Psychiatrist Report is before court and marked Exhibit 2.</p> <p>From the evidence that has been placed before court we are indeed satisfied that the injuries sustained by the deceased were caused by the accused. The post mortem report shows that the injuries inflicted by the accused caused the death of the deceased.</p> <p>In the circumstances of this case, and having regard to the undisputed evidence before court, it is clear that the accused was suffering from a mental disorder at the time of the commission of the offence and as such he cannot at law be held responsible for his actions, i.e. the offence of murder. In the circumstances, it is appropriate for the court to return a special verdict, that the accused is not guilty because of insanity.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p>In the result, the court makes the following order:</p> <ol> <li>The accused is found not guilty and acquitted by reason of insanity.</li> <li>The accused is hereby returned to prison pending transfer to Mlondolozi Special Institution for further examination and treatment in terms of section 29(2)(a) of the Mental Health Act (Chapter 15:23).</li> </ol> <p> </p> <p> </p> <p><em>National Prosecuting Authority,</em> state’s legal practitioners</p> <p><em>Kwande Legal Practitioners</em>, accused’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a>The law provides in regulating the criminal liability of the mentally ill in s 29 (2) of the Mental Health Act. It states:</p> <p>If a Judge or Magistrate presiding over a criminal trial is satisfied from the evidence including medical evidence, given at the trial that the accused person did the act constituting the offence charged or any other offence of which he may be convicted on the charge, but that when he did the act he was mentally disordered or intellectually handicapped so as not to be responsible for the act, the Judge or Magistrate shall return a special verdict to the effect that the accused person is not guilty because of insanity.”</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/91/2021-zwbhc-91.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21953">2021-zwbhc-91.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/91/2021-zwbhc-91.pdf" type="application/pdf; length=130317">2021-zwbhc-91.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Wed, 16 Jun 2021 07:22:17 +0000 Sandra 10057 at https://old.zimlii.org S v Ndlovu (HB 93-21, HC (CRB) 24/21) [2021] ZWBHC 93 (26 May 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/93 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 93/21</p> <p>HC (CRB) 24/21</p> <p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>ZILOLWAZI SIQEDENI NDLOVU</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J with Assessors Mr P. Damba and Mr J. Sobantu</p> <p>BULAWAYO 26 MAY2021</p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p><em>T. Muduma</em> for the state</p> <p><em>Miss A. Ndlovu</em> for the accused</p> <p> </p> <p> </p> <p>            <strong>MAKONESE J:        </strong>The accused was aged 50 years at the time of the commission of the offence.  The deceased was aged 3 years at the time he met his death.  The accused appears in this court facing a charge of murder in contravention of s 47(1) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The accused admits committing the murder but alleges that she lacked the requisite mental capacity to commit the offence by reason of insanity.  The state and defence have filed a statement of agreed facts narrating the events leading to the murder.  On 20th June 2019 and at around 0300 hours the accused and deceased were sleeping in their bedroom at Anele Ncube’s homestead, Malandu Village, Sun Yet Sen.  Accused woke up and strangled the deceased using a woollen hat which she tied around the deceased’s neck. Accused placed the body inside a travelling bag and concealed it with clothes.  On 20th June around 1900 hours Thandi Moyo who is a neighbour to the accused sent her son Germany Ncube to go and check on the accused who is an HIV patient. Accused had been behaving strangely the previous day.  Upon arrival at deceased’s home, Germany found deceased hallucinating saying the deceased had been taken by angels.  The accused requested to phone her husband who is employed Metal Ventures Mine.  Germany N went to his mother and informed her that the accused was behaving in a strange manner.  The two then proceeded to accused’s place of residence where they found Nkosilathi Sibanda.   Accused then asked Germany and Thandi Moyo to leave the room for she wanted to speak with her husband in private.  Accused then revealed to her husband that she had killed the deceased by strangulation. Accused was handed to a member of the police constabulary who attended the scene.  The matter was reported to Zimbabwe Republic Police Sun Yet Sen who arrested the accused.  Police officers opened accused’s travelling bag and found deceased’s remains with a woollen thread around the neck.</p> <p>            The state tendered into the record a post mortem report compiled by Dr S. Pesanai.  The report reveals that the cause of death was:</p> <ol> <li>Asphyxia</li> <li>Strangulation</li> <li>Assault</li> </ol> <p>By consent of counsel for the state and the defence a Psychiatrist’s report compiled by Dr Rodriguez Cordon Andres was tendered into the record.  The report indicates that the accused did not have a history of mental illness.  She did not consume alcohol.  She is HIV positive.  She was behaving strangely before the murder.  She suffered from hallucinations.  She had transient psychosis.  In his opinion, the psychiatrist concluded that at the time of the commission of the offence the accused was mentally disordered, suffering from neurocognitive disorder (transient psychosis).  She did not appreciate the wrongfulness of her actions at the material time.</p> <p>      Counsel for the accused, <em>Miss A. Ndlovu</em> sought to persuade the court to order a release of the accused in terms of section 29(2) (c) of the Mental Health Act (Chapter 15:12).  We pointed out that at this stage of the proceedings, the court did not have further medical evidence to suggest that accused had sufficiently recovered to be returned to society.  <em>Miss Ndlovu’s</em> assertions were primarily based on the fact that the Mental Health Tribunal was not functional and that the accused was likely to spend inordinate time in a special institution without medical attention and further assessment.</p> <p>            <em>Mr Muduma</em>, appearing for the state did not make substantive argument on the matter and left it to the court to decide.</p> <p>            On the facts presented to use we are satisfied that the accused lacked sufficient mental capacity to appreciate the wrongfulness of her actions at the material time.  She could not be held criminally liable for her conduct.  A special verdict is appropriate.  As for the release of the accused into society, this court shall leave that to the mental health practitioners and make an appropriate order to take into account the concerns raised by counsel for the accused.  It would not be proper to rely on submissions from the bar in the absence of accurate and reliable medical expert evidence on accused’s current mental state.</p> <p>            It is important for this court to highlight that cases of violent murder committed by mental patients are on the rise.  There needs to be adequate mental health care afforded to persons such as the accused.  There needs to be mechanisms to follow up on those detained in terms of the Mental Health Act. Where appropriate, persons committed to person in terms of the special verdict ought to be assessed and released where this is deemed safe and appropriate.  In the end, the courts are not equipped to release persons back into society unless there is sufficient and cogent evidence from expert mental health practitioners indicating that accused persons have recovered and are no longer a danger to society.</p> <p>      In the circumstances, and accordingly the following order is made:</p> <ol> <li>The accused is found not guilty by reason of insanity in terms of s29 of the Mental Health Act (Chapter 15:21).</li> <li>The accused shall be returned to prison pending transfer to Mlondolozi Special Institution for further examination and care.</li> <li>The accused shall immediately be reviewed by a Psychiatrist and a report shall be submitted on her mental condition and suitability for early release.</li> </ol> <p> </p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p><em>Webb, Low &amp; Barry</em> accused’s legal practitioners                                                                                                                                               </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/93/2021-zwbhc-93.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19618">2021-zwbhc-93.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/93/2021-zwbhc-93.pdf" type="application/pdf; length=392453">2021-zwbhc-93.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Tue, 15 Jun 2021 09:01:29 +0000 Sandra 10054 at https://old.zimlii.org S v Mpofu (HB 94-21, HC (CRB) 22/21) [2021] ZWBHC 94 (26 May 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/94 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 94/21</p> <p>HC (CRB) 22/21</p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>ORDETTA MPOFU</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p> </p> <p>MAKONESE J with Assessors Mr P. Damba &amp; Mr J. Sobantu</p> <p> </p> <p>BULAWAYO 26 MAY 2021</p> <p><strong>Criminal Trial</strong></p> <p><em>B. Maphosa</em> for the state</p> <p><em>T. Chimusaru</em> for the accused</p> <p>            <strong>MAKONESE J:        </strong>The accused was aged 44 years at the time of the commission of the offence.  The deceased was her husband. He was aged 52 years when he met his demise.  The accused appears in this court facing one count of murder in contravention of s 47(1) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The accused tenders a plea of not guilty but avers that at the time of the commission of the offence she was suffering from a mental defect. She did not appreciate the consequences of her actions and was not criminally liable.  The state and the defence have tendered into the record of proceedings a statement of agreed facts.</p> <p>            The facts of the matter are these.  On 10th April 2020 and at around 1945 hours and at 4546 Emganwini Township deceased was watching television with the accused and their three minor children.  One of the children changed the television channel.  This did not amuse the accused.  An argument ensued between the accused and her children.  The deceased remained silent.  Accused demanded that deceased should reprimand the children.  The deceased indicated his unwillingness to get involved in the matter.  He proceeded to the bedroom to sleep.  At around 2130 hours, without warning, accused armed herself with an axe and confronted the deceased in the bedroom.  Accused struck the deceased three times on the head with the axe.  The deceased died instantly. He sustained fatal injuries in the assault.  Accused exited the bedroom and informed her daughter Sisasenkosi that she had killed her husband.  A report was made to the police.  The body of the deceased was conveyed to United Bulawayo Hospitals for a post mortem report.  The findings of the pathologist were that the cause of death was:</p> <ol> <li>Encephalic dislaceration</li> <li>Cranial burst</li> <li>Chop wound</li> </ol> <p> The state tendered a report compiled by a Psychiatrist Dr Nemache Mawere.  He concluded that the accused had a long history of mental illness dating back to 2010.  He opined that accused was suffering for schizophrenia.  She had symptoms of depression and was not taking her medication at the relevant time.  In his opinion the accused did not appreciated the wrongfulness of her actions at the time she committed the offence.</p> <p>From the evidence placed before the court, we are satisfied that the accused could not be held criminally liable by reason of mental illness.  The death of the deceased was tragic. Unfortunately, cases of this nature are on the rise.  There is urgent need for adequate treatment and care to be provided to mental patients.</p> <p>            In the circumstances and accordingly the following order is made:</p> <ol> <li>The accused is found not guilty by reason of insanity in terms of s29 of the Mental Health Act (Chapter 15:12).</li> <li>The accused is to be returned to prison pending transfer to Mlondolozi Special Institution for further treatment and care.</li> </ol> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p><em>Dube-Tachiona, Tsvangirai</em>, accused’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/94/2021-zwbhc-94.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=17602">2021-zwbhc-94.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/94/2021-zwbhc-94.pdf" type="application/pdf; length=308638">2021-zwbhc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Tue, 15 Jun 2021 08:52:41 +0000 Sandra 10053 at https://old.zimlii.org S v Nyakabau (HH 330-19, CRB 114/18) [2019] ZWHHC 330 (07 May 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/330 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                                                                                                                                       </p> <p>THE STATE</p> <p>versus</p> <p>CHAKANETSA NYAKABAU</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA J<br /> HARARE 21, 23, 24, 31 January, 2019, 29 April 2019, &amp; 7 May 2019</p> <p> </p> <p><strong>Assessors:                   Mr Jemwa<br />                                     Mr Mpofu</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p> </p> <p><em>L Masango</em>, for the state<br /> <em>R Kwenda</em>, for the accused</p> <p> </p> <p>            TSANGA J: Waking up to an intruder in your home is conceivably among every person’ s nightmare, worse still when it unfolds as reality and not just a dream. Eviler still for a woman or a girl child who wakes up to the act of that very intruder sexually violating her. Add to that depraved unfolding situation, the whole gamut of emotions that can be expected from a parent who is equally awoken up by a child’s piercing screams, in the middle of the night, only to meet an intruder emerging from the children’s bedroom. This is what happened in this case.</p> <p>            The accused herein, whom we shall refer to only as CN for the sake of protection of his minor child, was charged with murdering the deceased, Rutendo Nyamukacha. He was said to have succumbed to assault injuries inflicted all over his body by the accused who fell into a violent rage when he encountered the deceased soon after his act of raping his daughter. She had let out blood curdling screams during the sexual assault.</p> <p>The accused denied the charge of murder and proffered self -defence in that his own attack on the deceased in the melee that ensued, was only in response to the deceased producing a knife and trying to attack him. Moreover, his defence was that the nature of his mild assault could not, in any way, have resulted in the accused’s death. He also argued that the accused had been attacked elsewhere before intruding at his homestead. The deceased was not a stranger. He was known to him and his family he worked as a herd boy for the accused’s brother.</p> <p><strong>The victim’s evidence </strong></p> <p>The victim who was fifteen years old at the time the incident happened, was the state’s first witness. She had woken up on the night in question to the deceased removing her pants and inserting his penis inside her. Her screams had woken her father who had immediately come to room in which she was asleep with her two younger siblings, aged 8 and 4. The deceased tried make good his escape but her father met him at the door and dragged him outside. Whilst she had not witnessed a physical fight as she remained inside her bedroom, she could hear there was a fight and a scuffle. She could also hear them talking although she could not discern what was being said.</p> <p><strong>Her stepmother’s evidence</strong></p> <p>The second witness was her step mother. She confirmed the screams of her daughter. Their house is a three roomed house with the door to the children’s bedroom leading from the veranda outside. Needless to comment, an ill-advised set up, where children sleep in an outer room whilst parents are indoors. Her husband too had awoken to the screams and had gone outside to the bedroom. She had momentarily remained in their bedroom and could hear that the two were fighting from the assault noises which she described as fists and blows and hitting against the wall. She had left the bedroom to call her step son Desire. This had taken all but two minutes as he lived close by.</p> <p>On her return with Desire, the accused was now in the dining room with the now deceased. She told the court that the deceased still wanted to fight and produced a knife which he wanted to use to stab the accused. At that point, the accused had taken a strop (essentially a piece of leather), which was in the dining room and assaulted him. The deceased was instructed to put the knife away which he proceeded to do by placing it in his pocket.</p> <p>The deceased also wanted to escape and had been tied to prevent his escape. Desire had then gone to call the deceased’s employer. When the police finally arrived, the deceased had been untied. When asked to confirm on how many occasions in total he had been assaulted, she mentioned three. Her testimony was that the deceased and the accused had fought at the time that the deceased was dragged from the spare bedroom, and, also when they were in the dining room. She also said in her evidence in-chief that there had been a further assault when the deceased was refusing to be tied.</p> <p>In cross examination, she confirmed that she had not been outside herself when the deceased and the accused initially fought. She did not know the number of times the strop had been used on the deceased but later tried to tally the number with that put to her in cross examination by the accused’s lawyer as being once on the hand and once on the back. Her purported statement also introduced in cross examination that she had heard the deceased had been assaulted earlier at the bar was of no value since it was merely hearsay evidence which she had not even been told by the persons who were said to have purportedly assaulted the deceased themselves. She did not even know the names of the persons he was said to have fought with and only agreed to suggested names as put to her in cross examination. It was evident that her intention was to minimise the assault on the deceased. Her evidence also differed somewhat from that Desire whom she had gone to fetch.</p> <p><strong>The accused son’s evidence </strong></p> <p><strong>Desire </strong>who was the accused’s son, was the third witness. He knew the deceased as they had gone to school together and moreover he was employed as his uncle’s herd boy. When called by his step-mother, he found the deceased in the dining room with his father whom he said was assaulting the deceased with a strop at the time. He specifically said he had seen the accused assaulting the deceased on his back although he could not say how many times since he was not counting. He was definite though that it had not been once.</p> <p>When the deceased had tried to reach into his pocket, he himself had reached into the deceased’s pocket and discovered that he was carrying a knife. He had taken the knife and put it in his own pocket before he and the accused proceeded to tie the deceased with a rope. He was adamant the knife had been in the deceased’s pocket at least when he arrived. This was in response to the question whether it was possible that the deceased may have tried to use the knife earlier. Whilst his step-mother had entered the dining room first, they were barely a minute apart in their arrival at the scene after he was called.</p> <p>He also told the court that the assault on the accused had stopped after they had tied him up at which point he had been taken outside and instructed to sit down. It was at that point that he had been instructed to go and advise other relatives about what had transpired. Materially, since his step mother said that the deceased had been assaulted when he was tied up, it is reasonable to assume that after he went to call his uncle and others, the assault persisted.</p> <p>Upon arrival of other relatives including his uncle, a decision had been made to call the police. The neighbourhood watch officer had finally arrived and had taken the deceased, the victim and the accused with him.</p> <p>As for the accused emotional state when he arrived at the scene, Desire observed that he was indeed angry and he had told him not to beat the deceased severely. He said the deceased was swollen on his back as a result of the use of the strop but that this was the only injury he had seen. Like the previous witness his purported remarks about an earlier assault was merely hearsay and of no value to the court.</p> <p><strong>Peacewell Mudzviti</strong></p> <p>The fourth state witness was a neighbourhood watch police officer who was called to the scene. He said he had arrived at the scene at round 1 am and found the now deceased tied. The deceased was lying on his side. He was said to have been assaulted for raping the accused’s daughter. The accused himself was not at home when he arrived. He had asked the deceased what he had done and he had said he was aware that he had “wronged the people at that homestead”. He observed that the deceased appeared to be having some mental challenges. He had enquired if he could walk as he had said he was feeling cold. He also observed that the deceased had injuries, as his hands as well as the right side of his face were swollen.</p> <p>When the accused returned, he narrated that the deceased had raped his daughter. The accused, the victim and the now deceased had then left the homestead in a bid to look for transport to Mutoko. The now deceased was at that time able to walk. They had covered approximately seven kilometres. He had also asked for forgiveness from the accused and had wanted to negotiate. They had failed to agree. The now deceased had then knelt down and lain on his stomach and had started to roll up and down. He had tried to enquire what was happening but the now deceased was no longer responding. At that point the accused had sought permission to run to the road to see if he could get transport and he had allowed him to. Realising that the now deceased no longer had power and that the accused was taking long to return, he had followed the accused and had found him still looking for transport. When they returned to place where they had left the now deceased, he was no longer breathing.</p> <p>Asked about the allegations that the deceased had previously been involved in a fight that night, he said that this had never emerged and he was not aware of it. What he knew was that the deceased had been assaulted at the accused’s residence since he had asked questions about what had happened when he arrived. He had been told that a strop had been used to assault the deceased. The strop was admitted in evidence as exhibit no 3 as was the rope that had been used to tie the deceased which was admitted as exhibit number 4. Importantly, he clarified when cross examined that when they left the accused’s residence, the reason they were heading to Mutoko was to seek treatment for the now deceased. This was proof that the deceased was critically injured as to require medical attention.</p> <p><strong>            Washington Shoko </strong>was the investigation officer in the matter and was the fifth witness. He was the one who had arrested the accused and had also carried out indications at the scene with him. He had also taken the deceased’s body to the hospital. He had further taken a statement from the accused. He had further gone to Parirenyatwa hospital for the post mortem.</p> <p>He told the court that the rape had been reported and the victim had been examined. However, as the rape had been handled by other police officers and not himself, the results of the examination were not before the court. He had concentrated on the murder charge. Suffice it to note, however, that it was not disputed that the victim had been raped. He confirmed that he had been advised that a knife had been taken from the deceased during a scuffle but said that it had never been mentioned that the deceased had actually tried to stab the accused.</p> <p>As for the assault, he said at the time of his arrest the accused had told him he had used his hands, fists and strop to repeatedly assault him all over his body. He had unearthed from the accused himself that he had used the strop on the now deceased when they tied him and put him outside. He too, dismissed as false the suggestion that the accused may have been assaulted elsewhere that day and was emphatic that this was never mentioned at all during the investigations. He also said the deceased had visible marks on his face and hands.</p> <p>In cross examination he said that the accused only started denying the use of the strop at the time that were recording a statement from him.</p> <p><strong>            Doctor Tsungai Victor Javangwe</strong> the pathologist who carried out the post mortem examination was the last witness. He holds a medical degree and a Masters and diploma in forensics from South Africa. He qualified in 1998 as a medical practitioner and has worked as a pathologist since 2010.</p> <p>The history of the deceased given to him when brought for the examination was that he had been assaulted for raping someone. He had multiple blunt force injuries. He had abrasions to his right upper arm and to his right temple. He also had injuries below his cheeks and had a swollen forearm. The examination had also revealed injuries beneath the skin. As for his head, it was swollen although there were no skull fractures. There was evidence of blunt force head injury. The deceased had basically been assaulted on his head, upper arms chest wall, lower back and his thighs as well. When shown the strop and asked if the injuries were consistent with its use, he stated that it was indeed possible that it was the weapon used. Moderate to severe force would also have been used.</p> <p>Of significance, was his emphasis that deadly injures may not necessarily be visible to the eye and yet when the skin is pulled back, it may become apparent that there was bleeding into the tissues. In other words, the gist of his explanation was that people can and do succumb to death due to hidden injuries.</p> <p>His evidence was not shaken during cross examination. In fact, he further explained that the injuries appeared to have been inflicted during the same time frame and were relatively fresh. Materially the strop used fitted the descriptive category of a blunt object. Additionally, he confirmed that hands and fists too, can cause blunt force injuries. As he had also recorded injuries that were hidden, the issue of a single blow was discounted. In particular the use of a linear object had been observed as a constant in the injuries. This was in line with the strop.</p> <p><strong>The accused’s evidence</strong></p> <p>His version was that when he saw the now deceased leaving his daughter’s room, he knew instantly that he had raped her because he was always threatening to do so. The deceased had tried to run way and had thrown fists at the accused which he had blocked and had dragged the now deceased into the dining room. At the point that his wife returned from calling Desire, the deceased had tried to produce a knife which the accused said he knew he always carried. He had taken the strop and assaulted him with it. The deceased had put the knife back in his pocket and it was at that point that his son Desire arrived. He ordered the deceased to sit and assaulted him again with the strop whilst telling Desire to take the knife away from him. They had thereafter tied the deceased because he was refusing to sit.</p> <p>When his brother who was the deceased’s employer came to the scene, he had obtained numbers from him and had tried to call the police who had not answered his call. It was then that Peacewell Mudzviti the neighbourhood officer had been called instead. Materially, he told the court that when Peacewell arrived, the deceased had complained of feeling cold. On their way to Mutoko the deceased had indeed admitted to raping his daughter and said he wanted to marry her. He had said he had been drunk when he committed the offence. He had also complained of feeling hot. He equally complained of feeling thirsty and had drunk copious amounts of water. What can be gleaned therefore is that the now deceased was unwell from the time they departed the residence.</p> <p>He had refused to forgive the now deceased. As he explained:</p> <p><em>“I was not able to forgive. I considered that my daughter could have contracted a disease and also that the rape would now compromise her marriage.” </em></p> <p>The accused’s warned and cautioned statement was admitted as Exhibit D1. He essentially admitted to fighting with the deceased after the rape encounter. He also admitted to tying him up and disarming him of a knife which he said was in the deceased’s pockets.</p> <p>He also told the court that he had learnt that the deceased was coming from the shops before coming to his place and that he had been told by the Kasimbe family that the deceased had an altercation with people at the shops. He did not say which people or which member of the Kasimbe family had told him this neither did he bring them or state them as his witnesses at the start of his case. His statements were again in the form of hearsay about who had said what to whom. All this was meant to bolster his suspicion that the accused had sustained injuries at the shops.</p> <p>He admitted in cross examination to being hurt and provoked by the attack on his daughter. He claimed that the sound of fists which his wife had heard were sounds of the now deceased attacking him at the time and him blocking the fists but later admitted to fighting. He admitted to signing the indications freely in which it was indicated that he had fought the deceased whilst at the bedroom. The unlikelihood of him assaulting the deceased only twice for raping his daughter was also canvassed and it was put to him that he had assaulted the deceased out of anger even if he did not intend to kill him. He denied multiple assaults.</p> <p><strong>Analysis </strong></p> <p>Desire’s evidence was the most lucid about what had happened to the deceased from the point that he had been called to the homestead that night. It in fact, it tied in largely with what the accused himself had stated in his warned and cautioned statement that a knife in the deceased’s pocket had been taken from him. Embedded in self-defence is essentially the acceptance that it is only a threat to one’s life that can justify the taking of another life. From all accounts, the accused was not threatened in this way since the knife was unearthed because the accused said he knew that the deceased always carried a knife. We do not believe the accused’s wife when she said that the now deceased had tried to stab the accused or that this incident occurred before Desire came into the room. They were only a minute apart and Desire would have seen this incident. There was indeed a motion to reach into his pocket on the part of the deceased when all three were in the room but it was also manifest that the motion had been stopped in its tracks by Desire who removed a knife from the now deceased’s pocket. He confirmed that the deceased was searched and disarmed. The accused’s own warned and cautioned statement also spoke to disarming the deceased as opposed to a life threatening situation posed by the deceased. He did not speak of two incidents of knife production. There was only one such incident.</p> <p>However, as far as both the accused’s wife and Desire tried to project in their evidence that the deceased had been assaulted minimally, it is material that from the evidence as a whole this was not the case. The neighbourhood watch officer observed that he was swollen on his hands and right side of his face, whilst the investigation officer had also observed marks on his face on hands. The post mortem report also spoke volumes on the assault. He had certainly not been assaulted on his back only as alleged by Desire. It could be that this is what he witnessed when he got there but it was certainly not the sum total of the assault on the deceased.</p> <p>We also lean fully in favour of believing the police when they stated that no report of the accused having been assaulted elsewhere ever arose during the investigations. The accused, aided by his wife, was evidently consumed with finding a way out of the fatal assault. We find it unlikely that the deceased would have been assaulted elsewhere without anyone reporting that to the police when they were investigating the matter. The villagers were aware by morning that the deceased had died. There is absolutely no reason why it would not have emerged at the material time. There was also no reason why the accused, having been out of custody, would have failed to put his material witnesses together for this trial. Observably, the statements regarding these purported assaults were largely hearsay and of no value to the court. The court essentially heard evidence that the deceased was in fact assaulted very brutally at the accused’s residence which evidence was equally corroborated by the medical report.</p> <p>Attributing the deceased’s injuries to rolling on the ground was also not supported by the evidence. It was clear that when Peacewell the neighbourhood watch officer arrived the deceased was already showing signs of being unwell. The objective of passing through Mutoko was also to seek medical assistance. On the way there the deceased also showed signs of being unwell from the injuries sustained. The post-mortem report was also very compelling and detailed in the injuries that the deceased was said to have suffered within the same time frame. They were also consistent with the strop.</p> <p>What we find is that the accused was definitely provoked by the attack on his daughter. Provocation is a partial defence to murder in terms of s 239 of the Code. Unpacking s 239 of the Criminal Code in the <em>Commentary on the Criminal Law (Codification and Reform) Act</em> [<em>Chapter 9:23</em>]<strong> c</strong>ompiled by Professor G. Feltoe explains as follows:</p> <p>“In murder cases there is a two-stage approach.</p> <p>The first stage is to decide whether X had intention to kill when he or she reacted to the provocation. If X did not have intention to kill, X will not be convicted of murder but only of culpable homicide.</p> <p>If X had intention to kill, then the court will proceed to the second stage, which is to decide whether X lost his or her self-control and killed intentionally in circumstances where even the reasonable person, faced with this extent of provocation, would also have lost self-control. If X did lose his or her self-control and the reasonably person would have done likewise, X will have a partial defence and will be found guilty of culpable homicide and not murder.”</p> <p>As regards the second rung in particular he uses the following example:</p> <p>      “Clearly the second rung of the defence will only succeed in a limited range of      situations where the provocation has been very severe and has provoked the person beyond endurance. For example, it might apply–</p> <ul> <li>where X kills a man whom he discovers raping his daughter or sodomising his son”;</li> </ul> <p> </p> <p>It is not in doubt that the deceased created the explosive situation that led to his assault. The provocation was extreme and the risk of fatal consequences in assaulting him in the manner that the accused did was foreseen. Desire said he warned him as much about assaulting the deceased too much. As to whether a reasonable person would have reacted in a similar fashion to the accused by assaulting him, in reality this is always a contextual rather than an armchair analysis.</p> <p>In this instance, the attack on his daughter had been sudden and in the dead of the night. Reasonably, he did not have the opportunity to appeal to the law to take its course in that moment. Unlike parts of the developed world where the police are genuinely a phone call away at the mere dialling of an emergency number such as 911, that is not our reality where the bulk of the population remains rural based. In reality, in our rural communities police stations are very faraway and transport is a challenge. In this instance, the evidence was that the nearest police station was 40 kilometres away. Even though it cannot be said that the accused totally lacked the opportunity to appeal to the official law in dealing with the intruder, the difficulties that people living in rural communities encounter in accessing the state’s justice delivery institutions should certainly not be overlooked. These challenges do have an impact in making an informed decision as to the realities that may have faced an accused in a given situation. Much will depend on the facts in terms of what was reasonable conduct under the circumstances.</p> <p>A fight would naturally have ensued when he bumped into the deceased as he tried to flee from his daughter’s bedroom. That is a natural reaction of any father to protect his child. A reasonable person would have reacted in the same way as the accused by engaging the intruder in a fight. He did later try to call the police after he had meted out punishment but got no response. The neighbourhood watch officer came after about an hour.</p> <p>The accused was upfront about other the considerations in a social context that added fuel to his anger over the rape of his daughter. The rape was seen by the accused as a threat to his own interests, much the same way as it would be seen by most such males in his setting who view their daughters as a form of property in specific settings. Even though considerations of women’s own rights as victims of violence have gained traction, still notions of women and girls as men’s possessions have proved to be less easy to overcome. (See the discussion in <em>S </em>v <em>Tembo</em> CRB118 on the nature of the rights that are violated for rape victims). In a social system where bride price is paid to the father to secure a daughter’s hand in marriage, he was categorical about his fears that as a rape victim, her chances of marriage had been compromised. His daughter was damaged goods as far as he saw it as a result of the rape actions of the now deceased. His status and honour in the eyes of the wider community had been interfered with.</p> <p>However ignoble his reasoning in this context may have been, his reaction has to be also understood from this perspective. In other words, his anger may ultimately have had less to do with deprivation of his daughter’s physical integrity and autonomy as a person in her own right and more to do with the perceived harm to his possession. Observably, he was no longer acting just to protect his daughter and to apprehend the intruder but also to inflict punishment. He was negligent in so doing as the law would have taken its course for the crime   of rape that the deceased had committed.</p> <p>We therefore return a verdict of guilty to culpable homicide in terms of s 49 of the Criminal Law Reform and Codification Act [<em>Chapter 9:23</em>].</p> <p>Having heard the usual personal mitigation circumstances including his compensatory gestures of paying cattle to the deceased’s family, what is of prime relevance in arriving at an appropriate sentence are the provocative circumstances that led to the assault. Provocation acts as a mitigatory consideration. Whilst the state took issue with accused minimising the nature of his assault, ultimately issues of remorse or lack of it are not the primary consideration. See the discussion on remorse in S v<em> Thomas Kanongo</em> HH 158/19. It is the crime that the accused committed that must remain the primary focus.</p> <p>The state also drew attention to the case of <em>S</em> v<em> Ncube</em> HM 21/18 in which a father killed the deceased who was his daughter’s boyfriend whom he found in his house. A six year term of imprisonment with two years suspended was imposed in that case. The state agreed that the facts and the nature of provocation herein are very different compared to that case. Herein the father caught the deceased who had just raped his daughter. We are cognisant that the family of the deceased also expects justice for the taking of a life, which is indeed a very serious offence. This court is equally cognisant that the law should be seen not to be encouraging people to take the law into their own hands. At the same time, in arriving at an appropriate sentence, we take into account the realities that the accused encountered including those challenges posed by the absence of readily and easily accessible police stations for rural communities. In instances of dire emergencies, self-help as a protective measure may prove to be deadly through no fault of their own.</p> <p>It is also necessary to take into consideration the trauma that the victim is already having to deal with not just from being raped but from her father having killed an intruder. Balancing all that there was   and all that there is to this matter, a suspended sentence under the circumstances of extreme provocation will meet the justice of the case. Accordingly the accused having been convicted of culpable homicide is sentenced as follows:</p> <p>Three years imprisonment wholly suspended for five years on condition that the accused does not during that time commit crime involving violence on the person of  another for which he is sentenced to a term of imprisonment without the option of a fine.</p> <p> </p> <p> </p> <p><em>National Prosecuting Authority,  </em>state’s legal practitioners<br /> <em>Machiridza Law Chambers, </em>accused’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/330/2019-zwhhc-330.doc" type="application/msword; length=98816">2019-zwhhc-330.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/330/2019-zwhhc-330.pdf" type="application/pdf; length=551228">2019-zwhhc-330.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/culpable-homicide">Culpable homicide</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/culpable-homicide-sentence">Culpable homicide (Sentence)</a></li></ul></span> Tue, 15 Oct 2019 10:09:46 +0000 Sandra 9412 at https://old.zimlii.org S v Muganduyi (HMT 44-19, CRB 16/19) [2019] ZWMTHC 44 (11 June 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/44 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NDIKIYANA MUGADHUYI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>MUTARE, 11 June 2019</p> <p> </p> <p> </p> <p><strong>Criminal Trial </strong></p> <p> </p> <p> </p> <p>ASSESORS:   1. Mr Mudzinge                     </p> <p>2. Mr Magorokosho</p> <p> </p> <p> </p> <p> </p> <p><em>E Mvere</em>, for the defence</p> <p><em>M Musarurwa</em>, for the State</p> <p> </p> <p> </p> <p>MWAYERA J: The accused pleaded not guilty to a charge of murder as defined in s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].it is the state’s contention that on and at Canlebury Farm Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by  assaulting her with an unknown object on the forehead and face intending to kill her or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in the injuries from which Diana Sithole died.</p> <p>Both defence and state counsel proposed that we proceed with the matter in terms of the Mental Health Act. Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned that at the time of commission of the offence the accused was mentally disordered. The doctor further gave opinion that after the accused’s admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.</p> <p>The state and defence counsel prepared a statement of agreed facts which outlined how the accused on the day in question, the fateful day assaulted the deceased on the head and face. From the summary and statement of agreed facts the attack was an unprovoked and horrendous one. That manner of attack also informed the state and defence counsel’s decision to proceed with the matter in terms of the Mental Health Act.</p> <p>We found no basis not to agree with the state and defence’s informed decision and thus proceeded with the matter in terms of s 29 of the Mental Health Act [<em>Chapter 15:12</em>]. The offence of murder which the accused is charged of consists of the <em>actus reas </em>and<em> mens rea</em>. The actions of physically assaulting are not in contention but the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention. The essential elements would consist of unlawful and intentional killing. The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.</p> <p>Accordingly as prayed for by both the state and defence counsel we return a special verdict of not guilty by reason of insanity. Both counsels have recommended that the accused still requires further management and care and that both his parents are late, as such there is no one to assist him till he fully recovers.   </p> <p>It is ordered that:</p> <ol> <li>The accused is not guilty by reason of insanity.</li> <li>The accused be returned to Chikurubi psychiatric unit or any other psychiatric unit for further management till released by a competent tribunal in terms of the law.</li> </ol> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p><em>Mvere, Chikamhi and Mareanadzo,</em> defence’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/44/2019-zwmthc-44.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26359">2019-zwmthc-44.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/44/2019-zwmthc-44.pdf" type="application/pdf; length=102045">2019-zwmthc-44.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Thu, 29 Aug 2019 13:36:03 +0000 Sandra 9387 at https://old.zimlii.org S v kudoma (HMT 51-19, CRB 19/19) [2019] ZWMTHC 51 (09 July 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/51 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>VIOLET KUDOMA</p> <p> </p> <p>                                                                                                                       </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>MUTARE, 9 July 2019</p> <p> </p> <p> </p> <p><strong>Criminal Trial (Mental Health Act)</strong></p> <p> </p> <p> </p> <p>ASSESORS:   1. Mr Magorokosho               </p> <p>2. Mr Chipere</p> <p> </p> <p> </p> <p><em>M Musarurwa</em>, the State</p> <p><em>T. T Sigauke</em>, for the Accused</p> <p> </p> <p> </p> <p>MWAYERA J: The accused pleaded not guilty to a charge of murder as defined in s 47 (1) (a) or (b) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. It is alleged that on 24 June 2017 at Kanyangira Village, Chief Makoni, Rusape, the accused unlawfully caused the death of Emily Kudoma by striking her with two bricks on the head twice intending to kill her or realising that there was a real risk or possibility that her conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Emily Kudoma died.</p> <p>The brief facts informing the charge are that the deceased and accused were mother and daughter respectively. They were staying together at Kanyangira Village. On 24 June 2017 the accused struck the deceased with two half bricks on the head leading to the deceased sustaining head injuries which caused her death. The state and defence counsel prepared a Statement of Agreed Facts in which they lay out how the accused struck the deceased. The Statement of Agreed Facts revealed that at the time of the commission of the offence the accused was mentally disordered and thus unable to control her self such that she lacked criminal responsibility.</p> <p>Both counsels proposed that the matter proceeds in terms of the Mental Health Act [<em>Chapter 15:12</em>] and sought a prayer of a special verdict of Not Guilty by reason of insanity to be considered. The affidavit of evidence by Dr Patience Mavunganidze a medical practitioner and psychiatrist was tendered as exh 5 by consent. The doctor expressed opinion that at the time of the commission of the office the accused suffered mental disorder which made her unable to appreciate the wrongfulness or otherwise of her actions. The doctor further opinioned that after undergoing treatment and management the accused was fit to stand trial.</p> <p> Also tendered in evidence was the post mortem report exh 1, refers by Doctor Thomas Nyamudya who concluded that cause of death was intracranial haemorrhage. The certificate of weight of the bricks used to strike deceased weighing 4,35 kg was tendered as exh 3 by consent and also the bricks tendered as exh 4. The sketch plan showing the general layout of the scene of crime as observed by attending police details through indications from witnesses was also adduced in evidence as ehx 2 by consent.</p> <p>Having considered the evidence adduced and the statement of agreed facts, we reached a conclusion that the accused was mentally challenged at the time of the alleged commission of the offence. She could thus not have the capacity to appreciate and formulate the requisite intention to commit murder.</p> <p>In the premises, a special verdict of not guilty by reason of insanity has to be returned. The defence and state counsel made further submissions as regards the fate of the accused after the special verdict. We must comment that the fate of an accused after the special verdict in terms of the Mental Health Act [<em>Chapter 15:12</em>] is to be considered. The consideration of the `fate after the special verdict is in our view important as an administrative measure to ensure protection of not only accused but the community at large.</p> <p>In this case counsel for the accused with the concurrence of the State counsel urged the court to consider retention of the accused to a psychiatric unit for further management and treatment as there is no one readily available to accept and assist the accused with regular intake of her medicine. The accused’s deceased mother was the guardian of the accused. In the circumstances, it is desirable that for accused and the community protection the accused gets special assistance at the appropriate institution.</p> <p>Accordingly it is ordered that:</p> <ol> <li>The accused is not guilty by reason of insanity.</li> <li>The accused be returned to Chikurubi Psychiatric Unit or any other such suitable institution for further management and treatment till she is released by a competent tribunal in terms of the law.</li> </ol> <p> </p> <p><em>National Prosecuting Authority</em>, State’s legal practitioners</p> <p><em>Gonese and Ndlovu</em>, accused’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/51/2019-zwmthc-51.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30110">2019-zwmthc-51.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/51/2019-zwmthc-51.pdf" type="application/pdf; length=103933">2019-zwmthc-51.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Wed, 28 Aug 2019 10:20:14 +0000 Sandra 9381 at https://old.zimlii.org S v Mafake (HMT 52-19, CRB 29/19) [2019] ZWMTHC 52 (16 August 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/52 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>STATE</p> <p>versus</p> <p>PATRICK MAFAKE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 16 July 2019</p> <p> </p> <p> </p> <p> </p> <p>ASSESSORS:             1. Mrs Mawoneke</p> <p>                                    2. Mr Chipere</p> <p> </p> <p> </p> <p><strong>Criminal Trial (Section 29. Mental Health Act [<em>Chapter 12:12</em>])</strong></p> <p> </p> <p> </p> <p><em>M Musarurwa</em>, for the State</p> <p><em>K. G Muraicho</em>, for the accused</p> <p> </p> <p> </p> <p>MUZENDA: The accused was charged with the crime of Murder as defined in s 47 (1) (a) or (b) of the Criminal law (Codification and Reform) Act [<em>Chapter 9:23</em>] where the state alleges that on 29 May 2017 at Dzingire Village, Chief Muusha, Chimanimani, the accused unlawfully caused the death of Loyce Mafake by assaulting her several times all over the body using a log intending to kill her resulting in injuries on the chin, left cheek and on the side of left eye from which she died.  </p> <p>The accused pleaded guilty but a plea of not guilty was entered, he added and qualified the plea by stating that he was not mentally stable when he committed the offence. The state and defence prepared and produced a statement of agreed facts which were admitted by the court and labelled exh 1. According to the agreed facts the accused is a male adult who resides at Dzingire Village, Chief Muusha Cimanimani in Manicaland province. The deceased, Loyce Mafake was his mother residing with accused during her lifetime.  On 29 May 2017 the accused assaulted the deceased with a log all over the body resulting in the deceased sustaining severe injuries on the chin, left cheek and on the side of the left eye. The deceased died on the spot. Her body was conveyed to Chipinge mortuary. On 31 May 2017 Doctor K. P Guvheya carried out a post-mortem examination and concluded that the cause of death was due to basal skull fracture due to severe head injury. He compiled a post mortem report. At the time of the commission of the offence the accused person was mentally disordered and unable to control himself such that he lacked criminal responsibility. The account given in the summary of the state case reflects a horrendous unprovoked assault consisted with mental incapacitation in view of the fact that the deceased was accused’s mother. Doctor Patience Mavunganidze, a psychiatrist formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, she further pointed out that accused is now fit to stand trial.  </p> <p>The state proceeded to produce the following as exhibits by the consent of the defence:</p> <ul> <li>The psychiatric report, marked exh 2.</li> <li>Post-mortem report No. 114363 C marked exh 3</li> <li>Weight certificate of the wooden log marked exh 4</li> <li>The sketch plan marked exh 5</li> <li>The wooden log weighing 1.5 kg marked exh 6</li> </ul> <p>Having looked at all the evidence led and produced by the state and also looking at the position taken by both the state and the defence we are of the unanimous view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in s 29 (2) of the Mental Health Act [<em>Chapter 15:12</em>].</p> <p>The accused has not yet fully recovered and in consultation with the father of the accused Mr Wilson Mafake, it was also concluded that accused needs further medical treatment.</p> <p>Accordingly the following order is returned:</p> <p>In terms of s 29 (2) (a) of the mental Health Act [<em>Chapter 15:12</em>] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.</p> <p> </p> <p><em>National Prosecuting Authority</em>, State’s legal practitioners</p> <p><em>Mugadza, Chinzamba &amp; Partners</em>, accused’s legal practitioners  </p> <p>                     </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/52/2019-zwmthc-52.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30799">2019-zwmthc-52.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/52/2019-zwmthc-52.pdf" type="application/pdf; length=103365">2019-zwmthc-52.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/insanity-defence">Insanity defence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/15">Mental Health Act [Chapter 15:12]</a></div></div></div> Wed, 28 Aug 2019 10:09:26 +0000 Sandra 9380 at https://old.zimlii.org S v Ranganayi (HB 270-18, HC (CRB) 110/18) [2018] ZWBHC 270 (26 October 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/270 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>LOCARDIA RANGANAI</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J with Assessors Mrs A. Moyo &amp; Mr O.M. Dewa</p> <p>BULAWAYO HIGH COURT 25 &amp; 26 OCTOBER 2018</p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p><em>Mrs T. R. Takuva</em> for the state</p> <p><em>Mrs M. Sibanda</em> for the accused</p> <p>            <strong>MAKONESE J:        </strong>The defence of non-pathological criminal incapacity caused by an “emotional storm” is not one that is usually raised in criminal matters in this jurisdiction.  In this matter the accused was aged 29 years at the time of the commission of the offence. The deceased was aged 8 years at the time she met her demise.  The accused was the deceased’s mother and the two were staying at 287 Industrial Site, Plumtree.  The accused appears in this court on a charge of murder.  The state alleges that on the 18th of April 2011 and at Dryden Farm, Plumtree, the accused administered rat poison to Monalisa Chinosengwa (the deceased) intending to kill her or realising that there was a real risk or possibility that her conduct may cause the death of the juvenile.  The accused pleads not guilty to the charge and raises the defence of non-pathological criminal capacity.  She tendered a limited plea of guilty with respect to culpable homicide.  The state rejected the limited plea and the matter proceeded to trial.</p> <p>            The state tendered into the record an outline of the state case narrating the factual background of the murder charge.  The facts are largely common cause.  They are these.  On the 18th of April 2011 the accused left home in the company of the deceased without telling anyone and went to Dryden Farm, Plumtree.  Upon arrival at the farm the accused had some bread with rat poison.  She gave the deceased the poisoned bread with the intention to kill her.  The deceased consumed the bread and succumbed to the effects of the rat poison and died whilst in a bushy area of Dryden Farm.  The accused attempted to take he own life by consuming some quantity of the rat poison.  She vomited and did not die.  On the 22nd April 2011 the accused left the remains of the deceased wrapped in a blanket in the bush and proceeded to report the incident to her neighbours who in turn reported the matter to the police.  The accused was subsequently arrested on allegations of murder.  The deceased’s remains were conveyed to United Bulawayo Hospitals for a post mortem examination.  The post mortem revealed that the cause of death was:</p> <ul> <li> </li> <li>Poisoning ingestion (rat)</li> <li> </li> </ul> <p>Accused”s neighbour, Silibile Ncube confirms that the accused had narrated to her how she had taken the deceased to the bush on the 18th April 2011 with an intention to kill the juvenile and thereafter commit suicide through the ingestion of rat poison.  Silibele Ncube confirmed that when the accused approached her she was visibly sick.  She was taken to Plumtree District Hospital for treatment, and later surrendered to the police.</p> <p>            In her defence outline the accused asserted that:</p> <p><em>            “…</em></p> <ol> <li><em>She pleads non-pathological criminal capacity.She also asserts that there are other factors concerning the circumstance of her conduct that diminish her responsibility.</em></li> <li><em>She was incapable of appreciating the wrongfulness of her actions as she acted under non-pathological “emotional storm”.The accused and her deceased minor child were being physically, emotionally and financially abused by her husband who habitually assaulted them.</em></li> <li><em>She made a number of reports to the police and she did not get the assistance and protection of the law that she expected.Her family also refused to let her leave her husband.”</em></li> </ol> <p>The accused gave a warned and cautioned statement to the police.  The statement was confirmed by a magistrate at Plumtree on the 4th of August 2011.  The English translation of the statement is in the following terms:</p> <p><em>“I do admit to the charge levelled against me, this happened after having problems with my husband.  I left home running away from my husband who had promised to assault me together with my child.  We escaped and went to the bush on the 18th April 2011 around 9 o’clock in the morning.  I was in possession of rat killer that I had bought which I applied on our bread so that my child and I could eat and die as my relatives did not want me to divorce my husband.  I applied poison on the bread and ate along with the child on the 19th April 2011 around 6 o’clock in the evening.  The child passed away on the following day at around 3 o’clock in the afternoon.  I then drank the remaining poison at around 3 o’clock on this day after realising that I failed to die after eating the bread with rat poison.  Still I did not die due to the fact that the poison was now mixed with water.  I stayed where my child died until I left on the 22nd of April when I regained my strength, that is when I went home where we live to tell them that I had killed the child using rat killer.”</em></p> <p>            The evidence of the state witnesses as it appears in the outline of the state case in respect of the under listed witnesses was admitted into the record by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07), namely:</p> <ul> <li>Slibile Ncube</li> <li>John Ncube</li> <li>Nevanji Mapingure</li> <li>Sergeant Shepard Sibanda</li> <li>Dr Langalokusa Sibanda</li> <li>Constable Gracious Mhlanga</li> <li>Constable Tatenda Chiutsi</li> <li>Assistant Inspector Buys</li> <li>Dr A R Casteiianos</li> </ul> <p><strong>The State case</strong></p> <p>            The state  led  <em>viva voce</em> evidence from one witness, <strong>Johnson Chinosengwa</strong>.  He testified that the accused was his wife before the commission of this offence.  The marriage relationship terminated following the death of the deceased and the subsequent arrest of the accused.  The witness confirmed that the deceased was his daughter.  He  informed the court that on the fateful day it was independence holiday.  He left home around 11 am leaving the accused and deceased behind.  He went to a location where independence celebrations were being held.  The witness stated that he had no misunderstanding with the accused on that particular day, although they were having problems over her pregnancy.  The witness indicated that the dispute over the pregnancy was caused by the accused’s intense mood swings, and bouts of anger.  In his own words, the witness stated that he thought the accused was afflicted by evil spirits.  When the witness returned home around 6pm both accused and deceased were gone.  The accused had taken away all their belongings.  The witness tried to search for the accused with all her relatives but to no avail.  On the 22nd of April 2011 the accused then came back reporting that she had killed their daughter Monalisa.  The accused was arrested by the police on murder allegations.  The witness was subjected to intense cross-examination.  He denied that he had physically and emotionally abused the accused.  He admitted that he had been dragged to the maintenance court over his failure to maintain the deceased.  The witness emphatically denied that on the fateful day he had threatened to assault the accused and the deceased.  Inspite of these denials, the court noted that the relationship between the accused and the witness was not a happy one.  The parties had not stayed together under one roof for an extended period of time.  From the time of their marriage around 2002, the parties appeared to have lived apart for most of their marriage.</p> <p>            The state closed its case without calling any further witnesses.</p> <p><strong>The defence case</strong></p> <p>            The accused, <strong>Lorcadia Ranganai</strong>, elected to give evidence under oath.  She largely adhered to her defence outline.  She maintained the version of events as detailed in the confirmed warned and cautioned statement.  She described her relationship with her husband as a difficult and unhappy union.  During the entire duration of their marriage relationship, she spent most of her time away from her husband.  She lived with her mother for some time.  At some stage she lived with an uncle before moving to Botswana where she took up employment as a maid.  She returned to the country around December 2010.  In April 2011 she was five months pregnant.  Accused says that she was regularly and routinely abused and assaulted by her husband.  She indicated that she did not report most of the incidents of domestic violence against her with the police.  Accused testified that her relatives insisted that she should remain with her husband.  She averred that she was so traumatised by her husband’’s abusive tendences that she decided to commit suicide and kill her daughter as well.  She reasoned that if she were to die she did not want the deceased to remain alive and endure further abuse at the hands of her husband.  The accused confirmed that she planned to kill herself and the deceased.  She confirmed that she went and purchased rat killer poison.  She decided to lace some bread with the rat poison and then give the deceased to eat.  She would then also ingest the poison and die.  The plan however, went horribly wrong.  Her daughter ate the poison and succumbed to the effects of the poison and died.  The accused claims that although she ingested the rat poison it was mixed with water and after she consumed the poison she vomited.  She fell unconscious but did not die.  When she regained strength she decided to go and alert her neighbours about what had happened.  The accused was taken to hospital for treatment.  She was later surrendered to the police.  Accused led police detectives to the scene of the crime, where the remains of the deceased were recovered wrapped in a blanket. The accused also led to the recovery of the empty sachets of rat poison at the scene.  The remains of the deceased were taken to Plumtree District Hospital, before being transferred to United Bulawayo Hospitals for a post mortem examination.</p> <p><strong>Analysis of evidence – Defence of non-pathological criminal incapacity</strong></p> <p>            As indicated earlier in this judgment most of the facts are largely common cause.  It is not in dispute that accused killed her daughter by causing her to eat bread laced with rat killer poison.  The evidence before the court supports the accused’s assertion that she attempted suicide by taking rat poison.  What is in issue is the accused’s intention and criminal liability at the time she committed the offence.  Our law broadly recognizes two forms of defence on a charge of murder.  The first group relates to the mental element and capacity to commit the crime.  The second group relates to the unlawfulness of the act.  The second group  of defences tends to justify or excuse the act.</p> <p>            In this matter, the accused admits that her avowed intention was to cause the death of the deceased.  She undertook all the preparatory work and purchased the poison.  She then planned the method of administration of the poison and bought some bread.  She then moved to the execution stage of the offence.  She left the home to some bushy area at Dryden Farm.  She administered the poison.  The deceased ingested the laced bread and died as a result of the effects of poison.</p> <p>            <em>Ms M. Sibanda</em>, appearing for the accused has implored the court to accept that as a result of the emotional and physical abuse the accused suffered at the hands of her husband, the defence of non-pathological criminal incapacity should be available to the accused.  She argued that the accused may only be found guilty of culpable homicide due to diminished responsibility.  In support of her argument she relied on the South African case of; <em>Eadie</em> v <em>The State</em> SCA-19-2001.  In this matter the appellant had killed the deceased by beating him to death in circumstances popularly known as “road rage”.  The appellant admitted that he assaulted and killed the deceased.  His defence was one of temporary non-pathological criminal incapacity resulting from a combination of intoxication and provocation.  The appellant argued that he could not distinguish between right and wrong.  The appellant’s defence had been rejected in the lower court.  The appeal was dismissed by the Supreme Court of Appeal.  The reasoning of the court was that his defence was not available, and the court held that an accused can only lack self-control if he was acting in a state of automatism.</p> <p>            <em>Mrs Takuva</em>, appearing for the state, argued that the defence of non-pathological criminal incapacity was not available on the facts of this matter.  In support of her stance she cited the case of <em>The State v Dorcas Duma</em> H-170-03 (unreported).  The facts of the case in that matter are remarkably similar to the case before us.  In that matter the accused killed her two and half year old son by administering poison to him.  The accused denied the charge and tendered a limited plea of guilty to the lessor charge of culpable homicide.  The state rejected the limited plea.  The accused was also in an abusive relationship.  The accused tried to take her life in a suicide attempt by taking poison.  She survived.  The child did not.  The accused relied on the defence of provocation and argued that the cumulative effect of the abuse and provocation excused her conduct and that she could only be convicted of culpable homicide.  In her judgment MAKARAU J (as she then was) dismissed her defence and at page 7 of the cyclostyled judgment state thus:</p> <p><em>“The facts of the matter before us show that the accused was subjected to abuse over some 5 years.  She did not react violently towards her abuser.  She did not even react in direct response to the latest battering but in general despair and resignation over her plight.  She decided to terminate her life, taking the life of the deceased as well.”</em></p> <p>            The defence of non-pathological criminal incapacity was also dealt with in the case of <em>The State</em> v <em>Noami Ncube &amp; Anor</em> HB-100-02.  In that matter the accused admitted that she had hacked the deceased with an axe but with no intention of killing him.  The deceased was accused’s husband.  She had struck him with an axe on the neck whilst he was asleep. She claimed that she wanted to fix him.  She argued that she was incapable of appreciating the wrongfulness of her actions and that she acted under non-pathological “emotional storm”.  The accused averred that she had been subjected to a sustained period of mental and physical abuse by her late husband.  She chronicled that her husband drank alcohol to excess and that from the inception of their marriage he verbally and physically abused her.  This had led her to suffer thus non-pathological “emotional” storm.  In that matter KAMOCHA J, rejected the defence and indicated that her actions were not consistent with those of a person who acted sub-consciously.  He held that her actions revealed that she had criminal capacity.  Consequently, the defence was not available to her.</p> <p>The issue of criminal capacity to act voluntarily is dismissed by the author J. Burchell, in <em>Principles of Criminal Law</em> 5th edition at page 75, where the following is stated:</p> <p>“Strictly speaking there are two stages in assessing the requirement of voluntariness.  First, is the accused capable of controlling his or her conscious well, and secondly, was the conduct in fact controlled by his or her conscious well?  If the first question is answered in the negative, there is no need to examine criminal liability any further.  The first question involves a subjective inquiry into criminal capacity, defined as the ability to appreciate the wrongfulness of conduct (the cognitive element) and the ability to act in accordance with this appreciation (the conductive element) …”</p> <p>            We find ourselves faced with almost the same set of circumstances as in the two cases referred to.  The accused was by her own admission aware that her act of taking the life of her 8 year old daughter was unlawful.  She had no right to take the life of her daughter.  She had no excuse for terminating the life of another.  Whatever emotional; or physical abuse she suffered at the hands of her husband did not excuse her conduct.  The defence of non-pathological criminal incapacity does not apply.  The accused possessed the necessary mental capacity to bring about the death of the victim.  She was not suffering from any mental incapacity.  She confirmed that she hoped to die as well by committing suicide.  She did not.  In the absence of any recognizable defence excusing the conduct of the accused, we are compelled by law to find her guilty of murder with actual intent.  She admits that she meant to cause the death of the deceased.  She achieved that objective.  The deceased lost her life.  Unfortunately for the accused she failed to take her own life.  In the circumstances we are satisfied that the state proved its case beyond reasonable doubt.  In the result, and accordingly the accused is found guilty of murder with actual intent.</p> <p><strong>Sentence</strong></p> <p>            In assessing an appropriate sentence this court shall take into consideration all the mitigatory features of the case as highlighted by accused’s defence counsel.  This court takes into account that the accused is a first offender.  She was aged 29 years at the time of the commission of the offence.  She was in an abusive relationship.  From the accused’s testimony she never really had a happy married relationship.  The court finds as mitigating circumstances the following:</p> <ul> <li>that the accused was in an abusive relationship</li> <li>that the accused was routinely abused physically and emotionally by the husband</li> <li>although the murder itself was premeditated there was emotional and psychological trauma brought to bear upon the accused</li> <li>the accused is a female first offender</li> <li>the accused admitted committing the offence and appeared genuinely remorseful for her conduct</li> <li>there has been a considerable delay of 7years in the finalisation of this case.</li> </ul> <p>This court however, notes that the correct message must be sent to society, that women who find themselves in abusive relationships should seek counsel.  The notion that suicide is the only escape route out of an unhappy relationship cannot be countenanced.  The courts have a duty to protect the sanctity of human life.  The right to life is protected under section 48 of the Constitution of Zimbabwe Amendment (No.20) 2013.  To take away the life of one’s child for whatever excuse will not be sanctioned or encouraged by these courts. Women who suffer the “battered woman syndrome” (BWS) ordinarily may, not raise the defence lack of criminal incapacity when they direct their anger and frustration, not at their abuser, but at their minor child, or some other third party.  In  this case the loss of life was unnecessary and unjustified.</p> <p>In the circumstances, and for the aforegoing reasons, the accused is sentenced as follows:</p> <p>10 years imprisonment of which 3 years is suspended for 3 years on condition accused is not within that period convicted of an offence of which violence is an element and for which she is convicted and sentenced without the option of a fine.</p> <p>Effective sentence: 7 years imprisonment.</p> <p> </p> <p> </p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p><em>Vundhla-Phulu &amp; Partners</em>, accused’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/270/2018-zwbhc-270.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26903">2018-zwbhc-270.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/270/2018-zwbhc-270.pdf" type="application/pdf; length=199636">2018-zwbhc-270.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Thu, 10 Jan 2019 08:23:39 +0000 admin 9235 at https://old.zimlii.org S v Kashiri (HMT 13-18, CRB 19/18) [2018] ZWMTHC 13 (27 September 2018); https://old.zimlii.org/zw/judgment/mutare-high-court/2018/13 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>PATRICK KASHIRI</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>MUTARE, 31 July 2018, 1, 2, 9 and 30 August 2018,</p> <p>10, 13 and 27 September 2018</p> <p> </p> <p> </p> <p><strong>Criminal Trial </strong></p> <p> </p> <p> </p> <p>ASSESORS:   1. Mr Magorokosho               </p> <p>2. Mrs Mawoneke</p> <p> </p> <p> </p> <p><em>J Chingwinyiso</em>, for the State</p> <p><em>E. L Mvere</em>, for the defence  </p> <p> </p> <p> </p> <p>MWAYERA J: The accused pleaded not guilty to a charge of murder proffered by the state. It is alleged by the state that on 19 February 2017 the accused unlawfully caused the death of Getrude Chamatumba by stabbing her with an okapi knife twice on the right shoulder, once on the chest and once on the neck with an intent to kill or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility. The accused’s defence was that he did not have an intention to kill the deceased. He pointed out that he was extremely provoked by the deceased’s utterance that it was his problem that he could not read that the tablets the deceased was taking were for HIV and AIDS. He was further provoked by the deceased who poured on him water she had used to bath a child with. The accused then lost self-control and stabbed the deceased. He thus denied having intentionally caused the death of the deceased but admitted to having committed culpable homicide as he reacted under extreme provocation.</p> <p>As deduced from the state papers, defence papers and from evidence of witnesses the brief facts of the matter are as follows. The accused and deceased who were lovers cohabited and lived as husband and wife in Epworth. They had misunderstandings over children born to them from other unions and this prompted the deceased to leave the accused in Epworth while she proceeded to N’anga Village Buhera. On 18 February 2017 the accused followed the deceased at the rural home. The discussions for possible reconciliation were futile. On the fateful day the accused then stabbed the deceased causing injuries from which the latter died. It is important at this stage to note that the deceased was stabbed with a sharp object. According to the state it was an okapi knife which was tendered in court as an exhibit through the investigating officer, while the accused stated that he used a pair of scissors he obtained from one of the huts.</p> <p>Given the circumstances of the case as outlined by the state and defence, a lot of aspects are common cause. The only issue to be decided by the court is whether or not the alleged provocation is sufficient to vitiate the requisite intention. In other words the court is to decide whether or not the accused had the requisite intention to kill the deceased.</p> <p>It is worth mentioning that evidence of 15 state witnesses was formerly admitted in terms of s 314 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. Three witnesses namely Musa Bulani, Shepherd Nzengende and Shakeman Rakafa gave oral evidence. Musa Bulani a brother to the deceased narrated how the accused approached their homestead in a bid to reconcile with his wife the deceased. The two failed to find each other and hence for the night the accused shared the bedroom with the witness. On 19 February 2017 the accused who had earlier been escorted to the bus stop enroute to Harare made a u-turn pointing out that one of his wife’s sister had suggested he goes back and be assisted to reconcile with his wife the deceased. Upon return the accused and the deceased did not agree. They exchanged harsh words following which the deceased poured some water which she had used to bath her son on the accused.   </p> <p>The accused moved to a distance and sat on a chair to dry up his clothes. At the time the water was poured, the state witness Stephen Nzvengende, had arrived to take the witness Musa Bulani for church. While the witness was having breakfast, his attention was roused by a scream from the deceased who was by then at the toilet/bathroom. The scream propelled the witness to rush out to investigate. He observed the deceased in a state of nudity with blood flowing while the accused was standing by holding a knife. The witness picked a log and advanced towards the accused who then fled while holding a knife. The deceased was taken to hospital and on 27 February 2017 she passed on. Stephen Nzvengende’s evidence tallied on material aspects with that of Musa Bulani. The witness initially observed the deceased pour water she used to bath the baby on the accused who then sat in the sun to dry up. He later observed deceased go to the toilet to bath. It was while at the bathroom that accused followed the deceased who screamed for help. The witness observed accused stabbing the deceased several times with a knife. Both witnesses generally gave their evidence well and they impressed the court as sincere witnesses.</p> <p>The last witness who gave oral evidence is one Sergeant Major Shakeman Rakafa who was the initial investigation officer of attempted murder charge. The witness recounted how on 19 February 2017 he in the company of other police details proceeded to Chimumvuri Business Centre where the accused had been apprehended by villagers for stabbing the deceased. The witness recovered an okapi knife from the accused and proceeded on all preliminaries leading to the arrest of the accused. The witness then took the accused and the exhibit, an okapi knife to the station. On 27 February 2017, the deceased passed and the charge was upgraded from attempted murder to murder. The witness was firm that the okapi knife tendered in court, although it did not have blood stains at time of production was the okapi knife he recovered from the accused. We had no reason to disbelieve the witness’ testimony moreso given accused’s confirmed, warned and cautioned statement revealed accused used a knife. </p> <p>The accused is the only witness who testified in the defence case. He pointed that he stabbed the deceased with a scissors he had obtained from the homestead of the deceased. He was adamant that he did not bring an okapi knife from Harare when he visited the deceased for possible reconciliation. It was apparent from all the evidence that the accused stabbed the deceased occasioning injuries from which she later died on 27 February 2017. The issue to be decided on is whether or not the accused had the requisite intention to kill the deceased given the defence raised. From the confirmed warned and cautioned statement and the defence outline and evidence of the accused, he was provoked by the fact that the deceased refused to reconcile with him then she poured hot water on him and that she mocked him for being illiterate and thus failed to read that she was partaking of “HIV AIDS” tablets.</p> <p>The defence of provocation is provided for in the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. In s 239 which states:</p> <p>“(1)      If after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section 47, the person shall be guilty of murder.”</p> <p>It is apparent that provocation is not a complete defence. For provocation to qualify and succeed as a partial defence to a murder charge leading to a conviction of culpable homicide, certain requirements must be met. In cases decided in the past it has been shown that the provocation must have been so intense as to negate intention on the part or the accused or so intense as to induce complete loss of self-control on the part of the accused.</p> <p>See <em>S v Mafusire</em> 2010 (1) ZLR 417, <em>S v Moses Saunyama</em> HH 581/17 at 16 and <em>S v Masina</em> 2010 (2) ZLR 498. In the <em>Masina</em> case it was held that for provocation to reduce murder to culpable homicide, it must be such as would lead the accused to act without intention, or with intention but having completely lost self-control, the provocation  being sufficient to make a reasonable person in his position and circumstances lose self-control. Given the circumstances of this case, the water which was poured on the accused was used to bathe a baby as such it could not have been hot. Admittedly the accused could have been enraged by this but he had time to cool off as clearly he did not lose self-control. His reaction to the pouring of water was to sit in open on a chair so as to dry up. Assuming the accused was mocked over illiteracy in failing to detect the deceased was taking HIV drugs and thus could have been infected this was provocation which would in sense and occasion loss of self-control. The reaction of the accused to the alleged mockery was calmness such that one wonders if there were such utterances at all. Moreso given the other witnesses at the scene did not hear such utterances. The reaction by the accused seems to support the state witnesses’ version that failed reconciliations and pouring of water occurred. Then some time later when the deceased was bathing the accused attacked in a move calculated to revenge. The accused did not react instantly and spontaneously to any provocation as a sign of showing loss of self-control. The accused in a calculated and calm manner proceeded to the room where he slept the previous night. If we accept accused’s version he then took a pair of scissors which he had earlier seen in the room in which he had put up for the night. He then followed up the deceased who was bathing and in a state of nudity he stabbed her. The stance of remaining calm and collected and then later go to collect a weapon and proceeded in a move likened to laying an ambush on an unsuspecting bathing deceased actually lays bare intentional attack as opposed to conduct occasioned by loss of self-control. Upon being confronted the deceased cried out for help and requested the accused to go away. The accused persisted even when the deceased took to her heels he pursued, tripped and stabbed the deceased in a manner indicative of intention to accomplish a set goal.</p> <p>Clearly given the calmness and time of reaction by the accused he cannot be viewed as having reacted in a manner that a reasonable person placed in the same circumstances as the accused could have reacted. In the circumstances of this case the defence of provocation cannot be sustained.</p> <p>A close look at 239 (2) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:</em>23] buttresses that the defence is not available for persons capable of formulating an intention to exert revenge. Section 239 (2) states:</p> <p>“(2) For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that</p> <p>(a)        he or she did have the intention or realisation referred to in section forty-seven;  or</p> <p>(b)        the provocation was not sufficient to make a reasonable person in the accused’s position and circumstances lose his or her self-control; the accused shall not be entitled to a partial defence in terms of subsection</p> <p>(1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”</p> <p> </p> <p>            Given the circumstances of this case the accused falls within s 239 (2) of the Criminal Code and thus the defence of provocation cannot be sustained.</p> <p>            The sentiments of Mathonsi J in <em>The State v Best Sibanda </em>HB 139/18when he dismissed the defence of provocation ring true in circumstances of this case. The Honourable Judge stated:</p> <p>“It occurs to me that the accused falls squarely within the provisions of s 239 (2). This obtains from the fact that provocation, by its very nature, connotes instantaneous and spontaneous reaction to phenomena in which the actor does not have any opportunity to formulate a strategy but acts on the spur of the moment having lost self-control in response to actions of another.”     </p> <p>  </p> <p><em>In casu</em> there was no spontaneous reacting or indication of reaction at the spur of the moment consistent with loss of self-control.</p> <p>In closing submissions the defence conceded that the reaction of the accused to provocation was not sudden but more of a calculated reaction. For provocation to succeed as a defence the reaction must be spontaneous showing loss of self-control and thus eliminating intention. The remarks by Lewis JA in <em>George Tsiga v S</em> AD 77/76 are true in so far as they clearly spell out the need for the reaction to the alleged provocation being sudden. The Honourable Judge of Appeal remarked that</p> <p>“The reaction to the provocation must be sudden in the sense that the person provoked acts on the spur of the moment and in circumstances where he has temporarily lost his power of self-control and does not appreciate what he was doing.”</p> <p>   </p> <p><em>In casu</em> the accused exercised self-restraint after water was poured on him. He sat down to dry himself. After insults were hurled at him he took his time and when the deceased was bathing he then went on to arm himself and proceeded in a furtive manner to attack the deceased. This clearly depicts a man who knew what he was doing and was capable of formulating an intention as he did not lose self-control but exercised self-control. See <em>S v Stephen </em>1992 (1) ZLR 115 H at 121 at F-6 where it was held that:</p> <p>“Once a person is capable of some self-control of his actions he becomes capable of forming <em>mens rea</em>”</p> <p> </p> <p>            The accused might have been angered by rejection, the pouring of water and mockery over illiteracy but remaining calm and collected is a clear indication of self-control. There was nothing that he did to show that he reacted in the heat of the moment without applying his mind to his actions. In the case of <em>Zimpack (Pvt) Ltd v Magarabi SC 196/94 </em>it was clearly spelt out that provocation should only be accepted as a partial defence if there was spontaneous reaction showing loss of control, mere anger and resentment is insufficient. See <em>State v Sibanda </em>(<em>supra</em>) and <em>The State v Ranch</em> HH 515/17.</p> <p>Having pointed out that the alleged provocation in this case is not sufficient to negate intention to commit the crime, the court has to decide on whether or not the accused committed the offence of murder with actual intention or legal intention. In the case of <em>S v Lloyd Mukukuzi and Another </em>HH 577/17 the court aptly formulated the test for intention when it stated that.in cases of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] the question is whether when the accused engaged in the conduct complained of, he had formed an intention to kill as defined in s 47 (1) (a). If he did not have the relevant intention to kill the deceased, the question becomes whether he realised that in “stabbing” the deceased in that manner there was a real risk or possibility of death occurring, but notwithstanding such realisation, he continued to engage in that conduct which then culminated in death. Actual intention was ably described in the case of <em>S v Mangwanda </em>2002 (1) ZLR 574. The court held that for a court to convict an accused of murder with actual intention the state must prove beyond reasonable doubt that:</p> <ul> <li>the accused desired to bring about death of his victim and succeeded in completing that purpose or</li> <li>while pursuing another objective, the accused foresaw the death of his victim as a substantially certain result of his activity and proceeded regardless.</li> </ul> <p>In respect of the second scenario it is clear that it is the reckless disregard of the risk associated with the conduct which provides the requisite <em>mens rea</em> in the case of a specific intent crime like murder. In the present case the accused set out to revenge for the failed reconciliation and that in total reckless disregard of the risk associated with his conduct stabbed the deceased on the neck and shoulder which are vulnerable parts of the body. The stabbing was in circumstances he foresaw that death was substantially certain to occur. Given the nature of weapon, a sharp object okapi knife or scissors and the number of blows aimed at a vulnerable part of the body one cannot fail to detect the <em>mens rea</em> of actual intention. In <em>S v Mema </em>HB 143/13 the court made it clear that the nature of attack, weapon used and position where attack is directed at are some of the factors to consider in deciding the intention of the perpetrator. In the <em>Mema</em> case (<em>supra</em>) it was held that actual intention is present when the accused sets out to cause death of the deceased and where he foresaw death was substantially certain to occur.</p> <p>I must mention that we found no reason to disbelieve the state witness Musa Bulani, Stephen Dzvengede, Sergeant Major Shakeman Rakafa on the murder weapon. This was more so upon considering the totality of the evidence and the accused’s confirmed warned and cautioned statement. This statement was recorded when events were still fresh in accused’s mind and he indicated just like the state witnesses that he used a knife. It appears the change of heat on the murder weapon came in during trial as a way of negating premeditation given the accused would be held to have brought the knife from Harare in anticipation of rejection. Even if there was evidence that the accused used a scissors as he mentioned the issue of intention has been illustrated by the manner in which he stabbed the deceased. Given the finding that there was no extreme provocation occasioning loss of self-control it follows the accused had the requisite intention to commit the crime.</p> <p>During the defence case the accused raised the defence of self-defence pointing out that he was struck with a stone on the mouth by the deceased. It was apparent from evidence adduced that the accused is the only one who spoke about this attack on him by a stone as he moved away into Musa Bulani’s room. Interestingly this defence was not pursued even in closing submissions. The accused later engaged and pursued the deceased who was bathing as evidenced by the running out of the toilet/bathroom in a nude state. This sequence of events clearly shows that when the accused stabbed the deceased he was no longer under attack assuming it had occurred. The defence of self-defence as provided for in s 253 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] shows that certain requirement have to be met for this defence to be sustained as a complete defence to murder. The requirements can be summarised as follows:</p> <ol> <li>that there is an unlawful attack</li> <li>that the conduct was necessary to avert the attack</li> <li>that the means used to avert the unlawful attack was reasonable</li> <li>that harm caused was caused to the attacker.</li> </ol> <p>All these requirements have to be met in order for the defence to be availed to an accused person. In this case given the circumstances of the case as postulated by the accused, he escaped after being struck with a stone as such he was no longer under attack. The means used was unreasonable given the deceased was in the bathroom/toilet and not in any attacking mode to warrant being stabbed in the neck as occurred. We took this issue of self-defence as not having been raised seriously but given as a gamble in the event that the provocation defence raised failed. Generally the accused lacked the disposition of telling the truth. Both defences of provocation and self-defence cannot be sustained in the circumstances.</p> <p>The state has discharged the required onus and proved beyond reasonable doubt that the accused took out the murder weapon with an aim to stab and kill the deceased by stabbing her on the chest, neck and shoulder in circumstances where death was substantially certain. The accused is accordingly found guilty of murder with actual intention as defined in s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].</p> <p> </p> <p><strong>Sentence </strong></p> <p>            Following the conviction of the accused both the state and defence counsels addressed us in mitigation and aggravation respectively. We have considered all the mitigatory and aggravatory factors advanced for purposes of assessing an appropriate sentence of the convict who stands convicted of murder with actual intention.</p> <p>            The convict is a first offender. Mr <em>Mvere </em>requested the court to take into account the personal circumstances of the accused. He is a father of one juvenile daughter and has an old mother to take care of. Further in mitigation is the fact that the accused person has been in custody for one year while awaiting the finalisation of a grave offence. The period of suspense is traumatic and hits hard on the individual. We have also considered the circumstances surrounding the commission of the offence to be mitigatory. The court will not pay a blind eye to the fact that although he did not lose self-control such as to justify his reliance on the provocation defence he was annoyed and angered by the deceased’s hostility. It is a fact she poured dirty water on him and that they also exchanged bad words. Cumulatively this reduces his moral blameworthiness. Further in mitigation is the fact that the convict cooperated with the police by handing over the murder weapon and also accepting having physically stabbed the deceased. Even during trial his evidence was clear that he stabbed the deceased with a sharp object.</p> <p>            However, the offence for which the accused stands convicted of is a very serious offence. As observed and pointed out by the state counsel Mr <em>Chingwinyiso</em>, the accused has started the criminal enterprise on the deep end. The accused occasioned loss of precious human life in circumstances where it could have been avoided. No one has a right to take away the God given and constitutionally enshrined right to life. The deceased, a young mother was robbed of her life at a tender age. Her child and relatives will always feel the pain that goes with the void created by her death.  </p> <p>            What further aggravates the offence is the total disregard of the deceased’s feelings. She was no longer interested in staying with the accused as husband and wife. For her to be stabbed in the manner that she was stabbed because accused did not accept rejection is clear indication of superiority complex on the part of the accused. Courts have expressed their displeasure on the use of violence as a tool of resolving disputes by passing severe sentences on the perpetrators of violence. In this case the violence is gender based and it was meted out in the most cruel inhuman and degrading manner. The deceased was attacked in a nude state while in the privacy of a bath room. See <em>The State v Robert Tevedzayi</em> HH 2006/18 where Tsanga J sentenced the convict to 35 years imprisonment for gender based violence occasioning the death of his wife. In the <em>Tevedzayi</em> case (<em>supra</em>) the learned Judge expressed displeasure at gender based torture inhuman and degrading treatment. See also <em>S v Arnold Jeri</em> HH 516 and <em>S v Chimbira</em> HH 558/15.</p> <p>            A conviction of murder with actual intention attracts severe punishment including life imprisonment and or capital sentence. The legislature in enacting the penal provision for murder with actual intention under s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] underscored the gravity of the offence. In the present case the accused used a lethal weapon, an okapi knife, possession which is unlawful in terms of our law. The blows were forceful and aimed on vulnerable parts of the body, the chest, neck and shoulder. Such cruel intentional gender based violence occasioning loss of precious human life should be visited with an appropriate sentence which will not only send warning bells to perpetrators off violence in general but domestic and gender based violence. The infraction of other people’s rights through violence is unacceptable in a progressive and civilised community. It ought to be discouraged by the courts moreso given it occasions harm to the society at large. In this case a mother was brutally murdered for ending a relationship with the accused. Having considered all mitigatory and aggravatory factors and circumstances of this case the removal of the convict from the society is called for. It is hoped that the sentence will deter the accused and likeminded violent people in the community. As we pass sentence we are alive to the universal sentencing principle that in exercising sentencing discretion the court should seek to strike a balance between the offence and offender while at the same time tempering justice with mercy so as to ensure the societal interest of proper administration of justice. The accused is sentenced as follows:</p> <p>            25 years imprisonment.    </p> <p>           </p> <p>   </p> <p> </p> <p><em>National Prosecuting Authority</em>, State’s legal practitioners</p> <p><em>Mvere, Chikamhi and Mareanadzo</em>, accused’s legal practitioners</p> <p>    </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2018/13/2018-zwmthc-13.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38962">2018-zwmthc-13.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2018/13/2018-zwmthc-13.pdf" type="application/pdf; length=156895">2018-zwmthc-13.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-defences">CRIMINAL LAW (Defences)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/diminished-responsibility">Diminished responsibility</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/murder-sentence">Murder (Sentence)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/515">S v Ranchi (HH 515-17 , CRB212/16) [2017] ZWHHC 515 (02 August 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/206">S v Tevedzayi (HH 206-18, CRB NO. 21/18) [2018] ZWHHC 206 (16 April 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 22 Nov 2018 08:12:13 +0000 admin 9164 at https://old.zimlii.org