S v Matikinyidze (251 of 2023) [2023] ZWHHC 296 (28 March 2023)

1 HH 251-23 CRB 54/22 THE STATE versus JUSTICE MATIKINYIDZE HIGH COURT OF ZIMABWE MUNGWARI J HARARE, 30 June 2022 & 28 March 2023 Criminal Trial Assessors: Mr Mhandu Mr Kunaka C Mutimusakwa, for the State C Majahana and S Bingura, for the accused MUNGWARI J: Differences between people have existed since time immemorial but it becomes worrisome when relations are thrown out of the window and those who are expected to live in neighbourliness turn to kill each other. The accused in this case was arraigned before this court on a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). The charge from which the allegations arose is that, on 24 October 2018 and at 19985 Stoneridge Park Waterfalls, Justice Matikinyidze (the accused) stabbed Elisha Mvurume (the deceased), who was his neighbour, with a knife on the chest causing mortal injuries. Prosecution alleged that, on the fateful day, the accused and the deceased’s wife had a misunderstanding. The deceased went over to the accused’s house with the intention of resolving the issue with his neighbour. The talks degenerated into a brawl and the accused subsequently stabbed the deceased on the chest. He fled the scene and left the deceased lying on the ground writhing in pain. The deceased was taken to hospital where he was pronounced dead on arrival. A postmortem report was conducted on the remains of the deceased and the conclusion was that the cause of death was cardiac tamponade, pericardium heart and liver rapture and a chest stab wound injury. The accused pleaded not guilty to the charge. In his defence outline he stated that contrary to the State’s assertions, it was the deceased who on the fateful day attacked him. His version was that on this day, the deceased came running to his house and pulled him from HH 251-23 CRB 54/22 where he was standing to an open space. The deceased started to hit him on the head until he fell down. Whilst he was lying sprawled on the ground, the deceased continued to attack him. He said he did not retaliate but instead got up from the ground where he lay and ran back to his house. To his horror, he found the door to his house locked and realized that he was trapped as behind him the deceased was breathing down his neck and was unrelenting in attacking him. At that point the deceased graduated to throwing stones and beer bottles at him. Possibly deceased’s other family members had now joined in the attack as the stones and beer bottles came from all directions of the deceased’s house. The accused added that prior to this day he had suffered a stroke and was still recovering. His movements were slow and labored. His vision was blurred. At all times during the attack he was protecting his head with one hand while holding his phone with the other. To add to his woes, as a result of the attack, he sustained a deep cut on his hand and his already affected head immediately swelled. He contends that because of this, he could not have stabbed the deceased. In any case, he had no weapon on his person. The accused rounded of his account by stating that he only ran away from the scene because a mob was calling out that he was a thief and urging everyone around to catch him. He ran away because he feared for his life. COMMON CAUSE ISSUES The issues which are not in dispute in this trial are that: 1. The deceased and the accused were long time neighbors. 2. On the fateful day, the deceased approached the accused in order to iron out some differences between themselves. A misunderstanding ensued between the two men. 3. The deceased was stabbed on the chest. No one saw who stabbed the deceased or how. 4. The accused fled the scene. 5. The deceased sustained severe chest injuries from which he died. ISSUE FOR DETERMINATION When the State’s allegations, the defense’s narrative and the common cause issues outlined above are put together it is apparent that the only issue which arises for determination is the identity of the person who attacked the deceased.  In view of this we proceed to summarise and analyse the witness’s evidence in so far as it deals with the identity of the deceased’s assailant. HH 251-23 CRB 54/22 THE STATE CASE With the consent of the defence, the state opened its case by tendering the autopsy which was sworn to by two pathologists, Drs. Yehilyn Iglesias, and Aisa Serano on 25 October 2018. The court admitted the report in terms of s 278(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (The CP&EA) and marked it as Exhibit 1.  It was not in dispute that the doctors had examined the deceased’s remains with a view to establishing the cause of his death at Chitungwiza Hospital. Their observations were that, in addition to the chest injury the deceased’s body had injuries on the left elbow and left wrist and incise wounds. They detailed their observations as follows: “1. Incise wound 7.5 cm large and 4 cm wide in right side of the chest, penetration, deep, with exposure of tissues, blood and internal areas 2. Close and up to the left wrist incise wound 3.5 cm large and a wide con self-defence injuries. Incise wounds 3. Ex corigated plague abrasion lineal in the flexure of the left elbow.” The doctors concluded that the death of the deceased was a result of cardiac tamponade, pericardium heart, liver rupture and chest stab wound injuries. Another significant condition noted was an occipital lineal fracture. They rounded off the sworn statement with the following comment: “The object is sharp, with approximately five (5) cm wide and +-25(25) cm large. Trayect up to down in front to the body.” Undoubtedly the injuries were signs of a violent attack that was perpetrated upon the body of the deceased leading to his death. In addition to this, the evidence of two State witnesses, namely Veronica Matonhodze and Tichaona Chirinhe was formally admitted in terms of s 314 of the CP & EA as it appears in the state outline. It was admitted without contestation and was to the following effect: Veronica Matonhodze (Veronica) On 24 October 2018 at around 5 p.m. the witness, a police officer and neighbour to both the deceased and the accused, heard verbal altercations between both her neighbours. An hour and a half later she heard cries of children and rushed over to investigate. She found the deceased lying in a pool of blood with the accused nowhere in sight. She assisted the deceased to get to the hospital where he was pronounced dead on arrival. Besides advising HH 251-23 CRB 54/22 the court that the accused and the deceased had a quarrel before the deceased turned up dead Veronica’s evidence did not advance the state case in any other way. Tichaona Chirinhe (Tichaona) Tichaona, a duly attested member of Zimbabwe Republic Police was on 29 June 2019, eight months after the incident, tasked by his officer in charge to re-construct the murder docket relating to the accused. He recorded witness statements and the accused’s warned and cautioned statement.  He did nothing else besides this.  His evidence did not add colour to the prosecution’s case. ORAL EVIDENCE The State led viva voce evidence from two witnesses namely Stella Chinyemba and Phillip Mvurume. The accused on the other hand testified for the defence and called in his daughter Aila Matikinyidze to testify in his defence. Stella Chinyemba (Stella) The witness is the deceased’s widow.  She confirmed that the accused is her neighbour in Stoneridge where she resided with the deceased and their family.  At the relevant time, their houses were demarcated by an open space and nothing else.  On 24 October 2018, she was present at her house when the confrontation between the accused and the deceased occurred. Her account of the matter was that earlier that day she had gone to work and the deceased had followed her and informed her that the accused was involving them in his family issues. He also informed her that upon his return home after work he intended to co