S v Moyo (HB 150 of 2016; HC CRB 57 of 2016) [2016] ZWBHC 150 (8 June 2016)

1 HB 150-16 HC (CRB) 57-16 THE STATE versus CHEST MOYO HIGH COURT OF ZIMBABWE MATHONSI J BULAWAYO 7 AND 8 JUNE 2016 Criminal Trial Ms N. Ngwenya for the state K. Dube for the accused MATHONSI J: The accused person was 43 years old at the time of the alleged offence on 27 January 2000 and was residing at his homestead in the Wabayi area of rural Gwanda under village head Matshina Ndlovu. 16 years and 4 months down the line he is appearing before us at the age of 59 charged with the murder of his daughter Sisasenkosi Moyo who was aged 5 years when she died. The accused has pleaded not guilty to the charge. The allegations are that on 27 January 2000 the accused’s wife had left the deceased under the care of the accused when she went looking for her missing sister. In the early hours of the following morning, that is at about 0500 hours the accused had reported to a neighbour that the deceased was dead. Indeed her body was found lying in the kitchen with a big gash on the forehead, a missing forearm and was partially burnt leading to the eventual arrest of the accused person. In his defence outline, the accused has stated that he was indeed left in charge of his daughter by his wife Gladys Mpofu on 27 January 2000. He and the deceased had worked in the fields in the morning before he later did domestic chores at the homestead. He started drinking what he calls “some brewed spirit.” It was after he had started drinking that he realized that the deceased’s clothes, which she had been putting on, were dirty and he washed those clothes. He continued drinking alcohol and proceeded to Phineas Ndlovu’s homestead where there was a beer drink but returned to his HB 150-16 HC (CRB) 57-16 homestead and slaughtered a chicken. After dinner he and the deceased retired to the bedroom where he continued drinking but he later slept leaving the deceased reading. The accused went on to say that it was at midnight when he woke up and discovered that the deceased was not in bed. He went to look for her in the kitchen where, upon arrival, he beheld the body of the deceased lying on the floor with her face smashed by the ridge of a tripod, dead. He says he removed the body from the tripod and covered it with a blanket before proceeding to notify his neighbour Gift Sibanda of the death. The state lined up ten witnesses to prove its case but owing to the unexplained delay in the commencement of the trial three key witnesses, namely Matshina Ndlovu, Ndazu Ndlovu and Philimon Moyo who had played central roles in bringing the accused person to book, have since died. In addition, the arresting police detail, Elvis Mwakajila, then attached to CID Gwanda who had gathered the evidence, is said to have since left the police service and could not be found. The evidence of Milton Mkize, Ronald Mhene and Doctor Mukwendi Kashalala Kayembe was admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it appears on the state outline. We will begin by looking at that evidence which was admitted. According to Milton Mkize, an attested member of the Zimbabwe Republic Police based at CID Gwanda, on 1 February 2000 he attended the scene of crime in the company of the investigating officer and interviewed the accused person. He told them that on the day in question he had consumed copious amounts of the illicit brew known as tototo. Of course, when the accused gave evidence in court he changed the brand of liquor to what he called “hot stuff” mixed with a soft drink. According to Mkize, the accused narrated to the police officers that the deceased had disappeared from bed leaving him fast asleep heavy with alcohol. The witness recorded a warned and cautioned statement from the accused which was later confirmed by a magistrate at Gwanda on 16 February 2000. The statement itself was produced in court. It is a lengthy and detailed statement in which the accused set out in chronological order the events of 27 and 28 January 2000 from the time he was left in charge of the deceased by his wife right up to the time of his arrest. It reads in part: HB 150-16 HC (CRB) 57-16 “After driving the cattle, I then passed by Phineas George Ndlovu’s homestead, since their home is near the river Tuli. I then asked Phineas Ndlovu whether Nomagugu’s mother had not passed by his place. Phineas replied, that she had not passed by his place. At that juncture I was still wearing the clothes which I was wearing in the morning consisting of a cream long sleeved shirt and a cream pair of long trousers. I went back to my home and cooked some chicken of which I left slaughtered after it had fallen into (a) pail of water. We ate food, I then went to bedroom together with Sisasenkosi when I got there I drank some more of my ‘tototo.’ I then retired to bed at seven in the evening leaving Sisasenkosi browsing through some books whilst seated at the table. Before going to bed I first closed the door. I fell into a deep sleep for sometime, before I woke up. I woke up in the middle of the night then searched around the bed with my hand for the child and could not find her. I woke up and found the door open, I went outside looking for the child until I got to the kitchen hut. When I got to the kitchen hut I found Sisasenkosi Moyo having fallen onto a metal tripod stand and her face was smashed onto the ridge of the tripod stand----. I then retrieved her from the top of the tripod stand, but by then she was dead. I then placed her on the floor. Thinking it was around 0300 hours in the morning. I stood for a long time thinking, I then took a blanket and covered the body and left to inform Gift Sibanda who is my neighbour about the tragedy. I took him to my home to see for himself the tragedy after which we notified other villagers on Friday morning---.” The admitted evidence of Dr Kayembe is to the effect that he examined the body of the deceased at United Bulawayo Hospital mortuary on 3 February 2000 and compiled his findings in the post mortem report number 75-69-2000 which concluded that the cause of death was multiple injuries and assault. The post mortem report itself was produced in terms of s278 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section provides that an affidavit by the doctor who has carried out an examination stating that he or she carried out such an examination and ascertained facts and arrived at an opinion, shall be prima facie proof of those facts and that opinion “on its mere production.” The doctor who conducted the post mortem observed that the time of death was 1900 hours, that the deceased was 90cm in height and he noted the following marks of violence: “a) b) c) Laceration right forehead (7 x 3cm) left arm (8 x 4cm) Below elbow amputation left arm with dislocated elbow joint and missing radius. Burns involving the head, limbs, abdomen, back and buttock 32%.” HB 150-16 HC (CRB) 57-16 He also noted a skull fracture of frontal and left parietal bones, fractures in the anterior and medial left cranial fassae. In addition there was extensive brain damage. The doctor concluded; “The injuries observed, besides the burns due to hot water, were caused by a sharp and heavy object like an axe.” He made a finding that the cause of death was multiple injuries due to assault. The admitted evidence and that which cannot be disputed prove the following, that; 1. The accused was left in charge of the 5 year old deceased by her mother on 27 January 2000. 2. During the day he was putting on a cream long sleeved shirt and a cream pair of long trousers. These are the same clothes which he was putting on when he met Phineas George Ndlovu. 3. It is the accused who first found the body of the deceased. When he did that in the middle of the night, he retrieved the body from the tripod while still alone and lay it on the floor and covered it with a blanket. 4. 5. After that he proceeded to notify Gift Sibanda, his neighbour, of the death. The accused told the police that he had b