S v Milifort (57 of 2023) [2023] ZWCHHC 47 (13 November 2023)

1 HCC 57/23 REF CASE: CRB 96/23 THE STATE versus MICHEAL MILIFORT HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 21 & 27 October & 13 November,2023 Assessors: Mrs. Mawoneke Mr. Manyangadze Criminal Trial K. Teveraishe, for the State F. Mhishi, for the Accused BACHI-MZAWAZI J: Introduction and Charge The remains of a four-year-old young girl were found lying in a pool of blood, her head crushed and her brains scattered on the floor of the wooden cabin they called their home in the early hours of the 18th of February 2023. The accused person, Micheal Milfort, the step father, was the last person to be seen with the deceased alive late in the night of the previous day. He was arrested in connection with the heinous killing and charged with murder as defined in s47 (1) of the Criminal Law Codification and reform Act [Chapter 9:23]. Accused’s Defence The accused person pleaded temporary mental insanity. He said that he neither had any recollection of the events of that tragic day nor the actual commission of the crime. It is his defence that if indeed he killed his stepchild, he thus lacked the requisite intention to do so. He alluded to a history of episodes or bouts of mental illness dating back to year 2020. Accused did not show any visible signs of unfitness to stand trial at the commencement of these proceedings. Common Cause Facts and Issues HCC 57/23 REF CASE: CRB 96/23 The common cause facts are that the deceased who was last seen with accused was found dead. It is not in dispute that accused killed her as his clothes where found soaked in blood. Accused had exhibited weird and bizzare behavior before and after the offence. This gives rise to the question, whether or not the accused had temporarily lost his mind during the attack on the minor child warranting a complete defence? The Facts, State Case, Evidence and Analysis The onus to prove the essential elements of the offence recognizably lies with the State like in most criminal cases, save those with statutory exceptions. However, in terms of common law there is a reverse onus on the accused to prove that he was mentally incapacitated at the time of the offence. See, S v Mapfumo & Ors 1983 (1) ZLR 250(S). In support of their case, the State procedurally produced, two medical reports on accused’s mental health status, the post mortem report, a confirmed warned and cautioned statement and summarized written evidence of seven out of ten witnesses unchallenged. Oral evidence was led from the remaining three witnesses. The pathology report disclosed the cause of death as severe head trauma. Facts as detailed by the first State witness Georgina Advent Sande The events leading to the murder are as chronicled by Georgina Advent Sande, the State’s first witness to give oral evidence thereby formulating the facts of the case. This witness happened to be the wife of the accused as well as the mother of the deceased. On the day in question the witness narrated that she awoke in the middle of the night to find the accused acting abnormally, with blood shot eyes, speaking incomprehensibly and incoherently. When she noticed that he wanted to harm himself she then struggled to restrain him. She witnessed the accused attempting to drink poison and punching the walls of the wooden cable they were sleeping in. During that struggle the deceased indicated that he wanted to sleep in the metal cabin next door instead of his own wooden one. The metal cabin was home to the wife’s cousin brother and his wife and who had already retired to bed. As the accused’s behavior grew increasingly violent with the progression of the evening, the second witness, Taurai Chinyanga joined in to assist his sister, the first witness. They both were overpowered and had to run for their dear life to yet another’s brother Stephen’s distant compound for shelter. Georgina, only managed to escape with her infant baby leaving the deceased behind. HCC 57/23 REF CASE: CRB 96/23 She added that the deceased then followed her at Stephen’s house in the company of the deceased who refused to remain behind when asked to. That was the last time she saw the deceased whom she discovered the following morning in the company of her sister-in-law, brutally murdered. They found the accused sleeping in the contentious metal cabin but when he was awakened by their wailing, he became more agitated and even more violent. It was the witness’s testimony that the accused person never exhibited any violent behavior towards anyone including the deceased prior to this occurrence. However, she alluded to the accused’s history of repeated intermittent bouts of mental illness spanning over a considerable period. She also testified that a few days before the incident the mental disturbances had emerged compelling her and her relatives who lived with them to seek assistance from a spiritual healer. From her point of view, the accused’s actions of that day were a culmination of what had transpired earlier giving rise to the involvement and intervention of a prophet. She told the court that in the past the mental illness episodes would manifest through his weird and strange behavior with an inclination to self-harm, suicidal tendencies and the destruction of his own newly purchased property. In addition, she also mentioned an isolated solitary incident when she discovered some green pills from the accused’s clothes which she suspected to be drugs. She was however, satisfied with the explanation from the accused that they were not drugs in the sense of illegal substances. We found the evidence of this witness credible although there was a slight immaterial departure from her written statement on the general attitude of the deceased when brought by the accused to where they had sought shelter that night. Although she was torn between as the mother of the deceased and wife to the accused, the court found no reason or justification in her lying to save one at the expense of other. More so, when the rest of all the admitted witnesses evidence dove tailed and corroborated hers in all the material aspects of the accused behavior prior to and on the day of the awful incident. Taurai Chinyanga’s written testimony Taurai Chinyanga, is a cousin brother to the first witness. He is the one whose metal cabin was next to the accused’s. He is also the first person to make an effort to assist his sister in HCC 57/23 REF CASE: CRB 96/23 restraining the accused. Chinyanga testified to the strange actions of the accused in making four visits to his adjacent metal cabin at night demanding to sleep therein instead of his own. He also corroborated the violent nature of the accused’s disposition on the day and his futile efforts to restrain him ending with him running to seek shelter elsewhere. Joyce Mwanza’s written evidence Joyce Mwanza, the third State witness, is a sister-in-law to both the accused and the first witness. She is also the wife of Stephen Zunde, the first witness’s other brother where the refuge was sought on the disastrous night. She attested to the recurrent nature of the accused’s mental health issues thereby giving credence to the history of the mental disturbances of the accused. Her evidence also revealed the continued violent behavior and instability of the accused the following morning after the discovery of the death of the infant child. She stated that the accused had to be restrained by her husband, Stephen with the help from other members of the public. Stephen Zunde and Samantha Mairos’ admitted evidence Stephen Zunde, witnessed the accused pacing around topless the following morning as well as the events of the previous night when accused’s family sought shelter at his residence. Samantha Mairos, a neighbor who came to the crime scene the following morning also witnessed the out of the ordinary ferocious deportment of the accused who frightened them away. Of note, the admitted evidence of all the relatives of the first witness consonantly, spoke to the abnormal