S v Chiramba (869 of 2022) [2022] ZWHHC 869 (24 November 2022)

1 HH 869-22 CRB 69/18 THE STATE versus JONAH CHIRAMBA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 15 March 2022, 7 June 2022, 23 & 24 November 2022 Assessors: 1 Mr Barwa 2 Mr Chokuvinga Criminal Trial H M Muringani with,M Mugabe, for the state P Kawonde for the accused MUNGWARI J : The accused faces a charge of murder, in contravention of s47(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] (hereinafter called “Code”), it being alleged that he caused the death of Sydney Zuruvi (hereinafter called “the deceased”), by stabbing him with a kitchen knife all over his body thereby inflicting mortal wounds. The state alleges that on 10 May 2017 the deceased parked his Honda Fit motor vehicle with registration numbers ADN 2231that he was using as a taxi. The accused approached the deceased and indicated that he wanted to be transported to Chinhoyi town for a fee. He boarded the motor vehicle. Already in the car were other passengers who were unknown to the accused person. They were already seated. The deceased drove the motor vehicle to the intended destination. Upon arrival everyone else disembarked leaving the accused alone with the deceased. The accused then asked the deceased to take him further to Chinhoyi show grounds. On approaching the 4km peg, the accused asked the deceased to stop the motor vehicle and he complied. He instructed the deceased to surrender his car keys but the deceased refused. The accused then drew a kitchen knife from his pocket and stabbed the deceased as he forced himself onto the driver’s seat. He took control of the steering wheel and drove the motor vehicle. As he did so, the deceased bit him on the left shoulder resulting in him losing control HH 869-22 CRB 69/18 of the motor vehicle which veered off the road and landed in a ditch. When that happened, and as bemused passers-by watched, the accused took to his heels and made good his escape. The deceased was taken to hospital where he later died. In due course a post mortem examination was conducted on the remains of the deceased. The accused pleaded not guilty to the charge and in putting the state to the proof thereof, he elected to exercise his right to silence in terms of s70 (1) of the Constitution of Zimbabwe setting the stage for a full trial. Albeit without the testimony of the accused person in rebuttal of the state case. Bearing the onus of proof, it remained for the state to place evidence before the court that the accused person committed the offence for which he was charged. STATE CASE The state placed reliance on some exhibits which were tendered in court, evidence adduced through formal admissions and viva voce evidence. As he opened the state case, counsel for the state tendered a copy of the autopsy report prepared by Dr Javangwe, who conducted the autopsy on the body of the deceased and concluded that death was as a result of “haemothorax secondary to penetrating incision wounds, right upper arm allutive and multiple incised wounds.” In lay man’s terms the deceased died of stab wounds. The state also tendered the accused person’s confirmed warned and cautioned statement. Below we reproduce it given the central role it will play in the determination of this case. Under caution, the accused person stated; “I admit to the charge of murdering the now deceased, Sydney Zurwi. I, in the company of my friend Ranganai Rice who resides in Banket, were in Chinhoyi at the bus terminus patronizing number 1 Beer hall. We then left the beer hall then Ranganai Rice waited by the rank whilst I had gone to purchase a knife in the nearby shop. I then showed him as per prior arrangement, to then use it to carjack a vehicle of our choice. We approached the now deceased where he was parking a red Honda Fit registration number ADN 2231 and indicated to him that we wanted to travel to Chinhoyi town but I wanted to proceed to show grounds at the Banana plantation area and he agreed. Though the now deceased had agreed, there were three occupants who were already in the vehicle, who also were en-route to Chinhoyi. My friend and I embarked on the vehicle and the now deceased drove to Chinhoyi town. My friend disembarked at Chinhoyi ZESA to proceed to our arranged location. The now deceased drove his vehicle and stopped at Karoi bus stop where Mhangura transport is sourced. The three passengers who were initially in the vehicle disembarked siting [ sic] that they wanted to travel to Mhangura. I was the only passenger left in the vehicle. As I initially occupied the back seat, I switched to the front passenger seat, armed with my knife in my pocket. The now deceased drove his vehicle to the Show grounds, about 4km drive. Just after the show grounds, I ordered the now deceased to stop and he complied. I then demanded his car keys and he flatly refused saying it was not possible. I grabbed the now deceased by the t-shirt and I pulled him, he took a screw driver and he stabbed me HH 869-22 CRB 69/18 on my hands. In retaliation I drew my knife and I started stabbing him all over the body several times. The now deceased disembarked the vehicle then I moved over the driver’s seat. He then came and sat in the front passengers’ seat, where I was initially seated. I made a U-turn, then the now deceased continued struggling with me and I further stabbed him, but he overpowered me then I disembarked from the vehicle. The now deceased then locked himself inside. I smashed the rear windscreen and proceeded to stab him some more. The now deceased started screaming for help. I drove the vehicle then the now deceased bit my shoulder. I lost control of the vehicle and it veered off the road then the left front wheel was punctured by a stone. I fled in the bush once I noticed people coming to the scene. That is all I can say.” As already stated, the accused person’s statement was confirmed by a magistrate and was admitted in terms of s 256 (2) of the Criminal Procedure and Evidence Act [Chapter 9.07]. The section allows the admission of such a statement on its mere production without further proof. Whilst conceding that prosecution was permitted to so tender the statement in terms of the law, counsel for the accused person indicated an intention to later challenge the admissibility of the confirmed statement on the basis that it was made under duress. As will be shown later, that approach was ill advised. The statement outlines how the accused committed the offence and the weapon he used. It places him at the scene of the crime. The onus therefore shifted to the accused to show, on a balance of probabilities, that he did not make the statement freely and voluntarily or that the confirmation proceedings were irregular. The evidence of Solomon Manyika, Tatenda Clive Chigondo,(Tatenda) Liberty Hove(Liberty) and Buddington Motsi Zimbudzana(Buddington) was formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it appears in the state outline. The evidence of those witnesses established the following relevant facts. Solomon Manyika was a relative of the accused. The relevant aspect of his testimony was that he confirmed being given a dark blue work-suit jacket with light green reflective lines by the accused. Tatenda, Liberty and Buddington confirmed being police officers who were part of the arresting team. In addition to this, Buddington recovered a blood stained knife, screwdriver and a pair of grey slippers from the deceased’s motor vehicle, a red Honda Fit. As a result of that evidence, the state tendered a kitchen knife with a green handle and a star screwdriver with an orange handle. The state also tendered the dark blue work suit with light colored reflectors. These exhibits were admitted as evidence by consent. The 2 witnesses who gave viva voce evidence, namely, Artwell Mwale and Kasmana Chiwambwa were in agreement that on the fateful day they saw the red Honda Fit vehicle swerve and veer off the road with the deceased loudly instructing t