S v Mawarira (CRB 53 of 2015) [2015] ZWHHC 426 (3 March 2015)

1 HH 426-15 CRB 53/15 THE STATE versus WASHINGTON MAWARIRA HIGH COURT OF ZIMBABWE HUNGWE J MUTARE, 24 February 2015 and 2 and 4 March 2015 Assessors: 1. Mr Rajah 2. Mr Chidawanyika Criminal Trial Ms JR Matsikidze, for the State Ms PMaganga, for the accused HUNGWE J: The accused pleaded not guilty to a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. The allegations of murder arose from the events of 24 July 2014 at Tsatse Village, Tangwena, Nyanga, where it is alleged the accused unlawfully and with intent to kill, struck the deceased Nigel Mawarira with an unknown object several times on the head and all over the body thereby causing injuries from which the deceased later died. The following facts were largely common cause or not in serious dispute. The deceased was the accused’s son. The accused arrived home drunk from a beer drink threatening to kill someone inside the house. Upon getting to the bedroom door, the accused kicked it open. His attention was distracted by a whistle blown by an unidentified person who stood at the gate to his premises. The accused decided to investigate this whistle. His wife, who bore the brunt of his physical abuse each time he got home in a drunken state, feared that this was one such typical day. She used the opportunity to make good her escape from the bedroom. She made away with the younger of their two children, leaving the older one asleep on the bed. Upon the accused’s return, he set upon a vicious and murderous assault on the deceased. On the following morning around 0600h, the accused’s wife, Lisa Mabwe, returned from her place of refuge. On the way back she met up with the accused who wore a blood stained shirt. When she enquired of him about the blood, she was told off. HH 426-15 CRB 53/15 Inside the room, she made the gruesome discovery of a badly injured boy, her step-son. She asked him what had happened to him. The now deceased told Lisa Mabwe that he had been assaulted by the accused. When she later confronted the accused, he told her not to reveal his role in the assault on the deceased lest he would assault her too. When the deceased’s condition deteriorated, the accused was heard to cry that he had killed his own son. He threatened to commit suicide. The evidence led against the accused is that after Lisa Mabwe’s return home, accused’s brother, Never Mawarira arrived home to check on the matters about which Lisa had reported to him. He had given Lisa refuge the previous night, Never observed that the deceased had multiple injuries all over his body; his face was swollen and there was a cut on the side of his head. When he asked his brother, the accused, what had happened, the accused told him that the deceased had fallen down twice on the doorstep. This explanation was also given to another brother who had driven the now deceased to hospital. None of the accused’s own brothers believed the story about deceased having fallen and injured himself. When the accused was confronted by the police, he changed his story and claimed that he had a pitched battle with an intruder on the night in question. During this epic battle, the deceased had gotten into the way and sustained injuries in the cross-fire resulting in his death. The accused maintained this story in his defence outline. He stated that when he heard his son cry, as he fought the intruder, he had rushed to the steps and carried him inside where he left him to sleep. The next day he got up. He did not wish to disturb his son and left to look for money to ferry him to hospital. During his evidence in court this story however changed. He told the court that the deceased got in between him and the other protagonist during their deadly encounter. He was struck by the stone missiles which his lone adversary pelted him with. When the fight subsided he had picked the deceased up and took him inside. He denied assaulting the deceased. We had no difficulty in rejecting this version of the events as false for the simple reason that it is quite contrary to the known and usual behaviour of a child. Children are known to avoid exposing themselves to danger. A child would have remained inside if there appeared to be some danger lurking outside in the dark. In the circumstances described by the accused, one would expect a child to have remained inside rather than wander outside where a fight was raging. We find no reason to believe that the accused’s child would have behaved differently from other children and opt to expose himself to danger. Secondly, the claim that HH 426-15 CRB 53/15 the deceased had fallen off the doorsteps found no takers even within the accused’s immediate family. It is absurd in the extreme to suggest a fall from normal doorsteps could possibly result in multiple bruises swollen head, a cut on the side of the head and so on. We are of the view that his wife’s evidence is to be preferred when she said that he had threatened her with assault if she revealed his role in the assault of the boy. He would only have offered such threats upon exposure if he had a hand in the death of his son. That is what the boy himself told his step-mother. We do not think that the accused’s wife would have lied against him on such a serious matter as one involving the death of his own son and her step-son. Unless what she said was the truth, why would she have confronted him about the blood on his shirt early in the morning? The fact of the matter is that the accused badly assaulted his son for reasons best known to him using unknown objects resulting in the injuries which caused his death. We also find that in the absence of the weapon used in assaulting the deceased and in light of the fact that the accused was drunk when he arrived home, there is a possibility that he was unable to form an intention, whether actual or legal, to kill his son since he had neither the motive to do so nor the realisation, as a result of his drunkenness, that his conduct carried with it the real risk of death occurring. As such therefore, it would appear to us that the accused was hopelessly drunk when he indulged in senseless domestic violence which resulted in the negligent killing of his son. In the result he must be found guilty of culpable homicide. National Prosecuting Authority, The State’s legal practitioners Mugadza Chinzamba & Partners, accused’s legal practitioners