S v Esau and Another (870 of 2022) [2022] ZWHHC 870 (28 November 2022)

1 HH 870-22 CRB No. 6/22 THE STATE versus PROSPER PRINCE ESAU and TICHAONA CHIRUME HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 16 February 2022, 24 & 28 November 2022 Criminal Trial Assessors: Mr Mhandu Mr Mabandla H Muringani, for the State H Mawema, for the first accused K Mabhandi, for the second accused MUNGWARI J: A 40 year old man, Fashion Chakanetsa (herein after referred to as “the deceased”) met his tragic demise at the hands of five assailants. The men are alleged to have assaulted him and made off with his motor vehicle, a Toyota Wish. He subsequently died from the injuries sustained during the assaults. Two of the men, Prosper Prince Esau (herein after referred to as “the first accused”) and Tichaona Chirume (hereinafter referred to as the “second accused”) were later arrested and arraigned before this court to answer a charge of murder in contravention of s 47(1)(a) of the Criminal law (Codification and reform) Act [Chapter 9:23] hereinafter referred to as the “Code”. The state alleged that on 31 October 2020 they both or one of them, unlawfully and intentionally killed the deceased. In detail, the state alleged that on 31October 2020, the two accused persons together with Munyaradzi Rusere,Takudzwa Hlanhla and Nyasha Tapfuma assaulted the deceased with unknown objects all over the body. The deceased lost consciousness and the five men dumped his body along a dusty road in Glenwood, Park Epworth in Harare. They then made off with the deceased’s motor vehicle a Toyota Wish registration number AET 6292. They were later involved in an accident with the car. The first accused was driving the motor vehicle when that HH 870-22 CRB No. 6/22 accident occurred along Simon Mazorodze Street in Harare. He was lucky to survive, was rescued from the wreckage and ferried to hospital where he was admitted. Unfortunately, his luck was also the beginning of his challenges as immediately after hospitalization the police arrested him on allegations of murdering the deceased. Munyaradzi Rusere,Takudzwa Hlanhla and Nyasha Tapfuma died on the spot. The second accused escaped unhurt and disappeared from the accident scene. He was arrested at the funeral of one his accomplices who had perished in the accident. A post mortem examination on the remains of the deceased established the cause of death as intracranial hypertension; global subdural hematoma; right parietal occipital bones fracture (lineal) and severe head trauma. First and second accused both pleaded not guilty to the offence. In his defence outline, the first accused gave his account of events as follows: At around 3 am of the fateful day he was at Matute bar drinking beer. He then met his longtime friend Nyasha Tapfuma (Nyasha) who was in the company of two individuals who were not known to him. It later turned out that their names were Munyaradzi Rusere (Munyaradzi) and Takudzwa Hlahla(Takudzwa). Nyasha who was driving a Toyota Wish, started bragging to him that he had recently acquired the motor vehicle from the proceeds of his successful mining activities in Mazowe. In the midst of singing his own praises, Nyasha offered to buy first accused drinks and invited him to drink with them, which offer the accused says he accepted. The four men imbibed until the bar closed. Thereafter they all agreed to move to a different bar. As a result, they all piled into the Toyota Wish with Nyasha the purported owner at the steering wheel. By then the first accused said he was inebriated. At around 0400hours whilst on their way to the other bar, the 4 men were involved in an accident which claimed the lives of Nyasha, Munyaradzi and Takudzwa. As earlier stated, the first accused was rescued and ferried to Parirenyatwa hospital where he was admitted for observation and treatment. All this time he was confused and lost as to what had transpired and was transpiring. He further stated that he does not remember making any warned and cautioned statement and even when the statement was confirmed he was not in a sound state of mind. He denied having caused the deceased’s death nor inflicted any injuries upon the deceased nor having an intention to kill him. He prayed for an acquittal in the circumstances. On the other hand, the second accused’s defence outline was to the effect that, he was in the business of selling vegetables at Mbare. On the day in question at around 1600hours his HH 870-22 CRB No. 6/22 two friends Munyaradzi and Takudzwa came to his vending stall. They were in a grey Toyota Wish with three other unknown people. His two friends then invited him for a drink and he agreed to join them. They all went to a bar in Mbare. After sometime he took his leave and left his friends drinking in the bar. As he walked along the road he saw them follow him in the Toyota Wish motor vehicle and they invited him to come along. He declined the offer as he was keen to spend a night with his girlfriend Kelly at her place. Later on he was informed by Angela Chiwara that his friend Takudzwa was involved in a car accident. He reacted by calling Olysta Hlahla, Takudzwa’s father and informed him of the accident in which his son had perished. He subsequently offered to assist in the funeral arrangements of his friend. He was arrested at Takudzwa’s funeral because Takudzwa’s father was suspicious of him. He never met the deceased and did not participate in his death. He was neither involved in any accident nor sustained any injuries. He was merely implicated because he had boarded the motor vehicle earlier in the day. He emphasized that he was in Mbare at the time of the alleged offence. In essence second accused proffered a defence of an alibi. Issue to be resolved Both accused denied having met or caused the death of the deceased. The issue for resolution is therefore whether each or both of them was in contact with the deceased before his death and if so whether they caused his death. We now turn to analyse the evidence. THE STATE CASE With the consent of the defence, the state opened its case by tendering the autopsy which was sworn to by a pathologist, Dr. Yoandry Olay Mayedo on 17 November 2020. The court admitted the report in terms of s 278 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (The CP&E Act) and marked it as Exhibit 1. It was not in dispute that Dr. Mayedo had examined the deceased’s remains with a view to establishing the cause of his death at Parirenyatwa Hospital on 3 November 2020 at 1200 hours. His observations were that the deceased’s body had injuries in particular a fractured scalp, abrasions on the right thigh, and multiple wounds. He observed the following on the skull and brain of the deceased: 1. Right parieto 2. Decipated lineal bone fracture 3. Global subdural haematoma HH 870-22 CRB No. 6/22 He concluded that the death of the deceased was a result of intracranial hypertension, brought on by global subdural hematoma, right parieto occipital bones fracture (lineal) and severe head trauma. The injuries were signs of violence that was perpetrated upon the body of deceased and which caused his demise. The Prosecution also sought to introduce in evidence, the first accused’s warned and cautioned statement. The defence expressed reservations on the production of the confirmed statement. The basis being that the first accused had no recollection of having made the statement and as a result did not make it. The statement was confirmed by a magistrate and was provisionally admitted by the court in terms of s 256 (2) of the CP&E Act. It was marked as exhibit 2. In that confession the first accused stated as follows: “I have understood the nature of the caution for the allegations and I do admit. We hired a car to take us from Glenwood to Overspill. Along the way, one Nyasha who was among us then seized the driver. The driver then came out of the car and started fleeing away. Nyasha began pursuing with some of us the likes of Tichaona Chirume, Takudzwa and Munyaradzi following. He struck him up