S v Machado (309 of 2023) [2023] ZWHHC 214 (15 May 2023)

1 HH 309-23 CRB 31/23 THE STATE versus TRISH MACHADO HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 20 – 22 March & 15 May 2023 Criminal trial Assessors: Mr Shenje Mr Gweme A Masamha, for the State A Majachani, for the accused MUREMBA J: The accused person is facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). She pleaded not guilty to the charge. The State alleges that on 19 May 2022, the accused unlawfully and with intent to kill or realizing that there was a real risk or possibility that her conduct may cause death continued to engage in that conduct despite the risk or possibility and caused the death of Walter Chiponda by throwing him into Mazowe River thereby causing him severe head trauma and drowning resulting in his death. The deceased was her 4-year-old son. In her defence outline the accused did not dispute that she threw the deceased into the river as alleged by the State. She however stated that when she did so, she never wanted to kill her child. She was suffering from some form of psychological trauma or mental disturbance. She grew up as an orphan, her parents having died when she was an infant. She was taken care of by a sister to her paternal grandmother whose husband never wanted to stay with her. He always said that she was a stranger and was constantly verbally abusing her. The situation got worse when she fell pregnant and was rejected by her lover. She was chased away from home. It is the cumulative effect of all these things that triggered a psychological disorder that caused her to HH 309-23 CRB 31/23 slide into a perpetual state of depression. It was the accused’s prayer that she be acquitted of murder and be found guilty of culpable homicide. It was stated that at most the accused negligently caused the death of the deceased. The State led the following evidence. It produced the accused’s confirmed warned and cautioned statement wherein the accused stated the following. On 19 May 2022, she left her grandparents’ home after they had chased her away. She left with the intention of killing her son and herself. She left home at around 0900hours going to Shamva where she spent the day with the deceased. At around 4pm she proceeded to Mazowe River where she intended to throw the deceased into the river so that he would die. When she got to the river, she sat with a certain lady who was selling her wares at her market stall while the deceased was playing with that lady’s child. The lady later left as the accused was waiting for the sun to set. The accused waited until 1900 hours and then lifted the deceased. She removed his clothes leaving him with the underwear only. She then threw him into the water and fled from the scene. She left his clothes on the river bank. The accused said that the deceased died in the river because of her actions. The State also produced the post mortem report by consent. It states the cause of death as brain edema and severe head trauma. The State led evidence from Emily chigunde. She is the lady who was selling her wares by Mazowe River bridge when the accused arrived at the river. Emily Chigunde’s evidence is similar in all material respects to what the accused said in her confirmed warned and cautioned statement about their encounter and how they parted ways. For this reason, we shall not repeat her evidence. Emily Chigunde went on to say that on the next day when she went back to her vending site, she saw people gathered by the bridge. People were looking at the body of the deceased which was floating in the river between two rocks. She got closer and managed to identify the body and the bag of clothes. She then remarked that the lady that she had spent the previous day with was the owner of the bag and the mother of the little boy whose body was in the river. One Luke who is the person who had discovered the body then called the police. He also went on to retrieve the body from the river. The witness said that she gave him a wrapping cloth so that he would wrap the body. Edward Mutimodyo, a constable in the Zimbabwe Republic Police testified as follows. At the time material to this case, he was stationed at Shamva Police Station. On 24 May 2022, as he HH 309-23 CRB 31/23 was driving from work going home, he received an anonymous call. The caller said that he was calling in connection with the body of the child that had been retrieved from Mazowe River. The caller said that he suspected that a certain lady who used to stay in Chishapa area of Shamva who had since relocated to Masauso area is the one who abandoned her child whose body was then retrieved from Mazowe River. He said that the lady was now being seen without the child. Coincidentally Edward Mutimodyo was carrying a passenger who comes from Chishapa area. Edward Mutimodyo diverted his route and proceeded to Masauso to look for the accused. There is a mine and a lot of tuckshops at Masauso. The mine is called Wep mine. The witness said that he proceeded to the tuck shops when he arrived at Masauso. As soon as they arrived there, the passenger that Edward Mutimodyo was carrying saw the accused who was at a certain canteen and identified her as the lady the anonymous caller had referred to. The accused was busy serving food to some customers. Edward Mutimodyo said that he then approached the accused and identified himself as a police officer. He went on to ask her where she had left her child. She said that she had left him at Mazowe River bridge by himself. As they were talking, a certain man who identified himself as an uncle of the accused arrived. When the uncle heard what was going on he asked the accused to go and change her clothes so that they could go to the police station. When the accused was done, they proceeded to the police station. On their way they stopped at Mazowe River bridge where they saw the first witness Emily Chigunde who had earlier on told the police that she had seen the lady who had abandoned the deceased. Upon seeing the accused, Emily Chigunde positively identified her as the mother of the deceased. Edward Mutimodyo said he then proceeded to Shamva Police Station where he handed over the accused to the investigating officer. The witness said that Masauso is about 12 – 13 km away from Mazowe River bridge. He said that at Masauso he learnt that the accused was working for a certain lady cooking sadza. During cross examination it was put to this witness that it is the accused person who had handed herself over to the police after committing the offence. It was being denied that the accused had been arrested at Masauso. The witness maintained that that was not true as he is the one who went and apprehended her at Masauso after receiving an anonymous call. Winnet Muchemwa, a sergeant in the Zimbabwe Republic Police testified as follows. She was the investigating officer in the matter. She was allocated the matter after the accused had HH 309-23 CRB 31/23 been arrested. According to the copy of the report received book that was produced as an exhibit through her, the person who made the report to the police about having discovered the body of the deceased in Mazowe River was one Luke Chadereka. She denied that it was the accused who reported the matter and handed herself over to the police. She said that the accused led them to Mazowe River where she freely and voluntarily made indications about how she had committed the offence. The investigating officer further said that she learnt from the accused that at the time that she committed the offence she was actually married and was staying with her husband who was the step father of the deceased. The accused furnished her with the contact details of her husband. The husband was called and he came to the police station. He confirmed that he was the accused’s husband and step father to the deceased. He said that he started staying with the accused and the deceased when the deceased was tw