S v Murira (736 of 2022) [2022] ZWHHC 736 (21 October 2022)

1 HH 736-22 CRB 11/22 THE STATE versus MERJURY MURIRA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 14 February & 21 October 2022 Criminal Trial Assessors: Mr Chimonyo Mr Mpofu D H Chesa with T Mukuze, for the State T Sengwayo, for the accused MUNGWARI J: Had it not been tragic, the sordid and grimy events which led to these allegations of murder would have been the perfect script for a horror movie. In another sad reality of the scourge of domestic violence Merjury Murira (hereinafter the accused) appeared before this court charged with the murder of her husband Taruwinga Muhwati. The allegations against her are that on 19 November 2020 at Chisiku village in Pfungwe Mutoko, she struck the deceased once on the chin with an axe intending to kill him or realising that there was a real risk or possibility that her conduct could cause the death of the deceased. Despite that risk she persisted with her conduct resulting in the deceased’s demise. In detail, prosecution alleged that on the fateful day, at around 1000 hours a misunderstanding arose between the couple. The dispute revolved around the issue of a certificate of death for the accused’s former husband. During the altercation the deceased assaulted the accused. He was however restrained by P Mudyirapo (P) from further assaulting the accused. In the evening, the two together with P retired to bed. During the same night, the accused is alleged to have woken up when the other two were in deep slumber. She picked an axe that was nearby and struck the deceased on the chin. He died instantly. She threw another strike which landed on P’s head. She thereafter fled the scene. She was arrested a short while later. HH 736-22 CRB 11/22 On 26 November 2020 a post mortem examination was carried out on the remains of the deceased. It was concluded that death was due to brain oedema and severe head trauma. The accused denied the charge. In her defence outline she told the court that: P is her biological daughter whom she sired with her former husband. It therefore meant that the deceased was P’s stepfather. On the fateful day the accused said she had discovered that her daughter P was 4 months pregnant and that the deceased was responsible for the pregnancy. The discovery brought with it intense and unbearable pain on her. She confronted the deceased about it. He was shameless in admitting it. Instead of being remorseful, he subjected her to inhuman and degrading treatment. He relentlessly assaulted and tortured her from the afternoon of that day until well into the night. During the assaults, the deceased had even turned on the volume on his radio set to its fullest in order to drown the accused’s cries and to avoid attracting their neighbours to the abuse. As a result, no one came to the accused’s rescue. In addition the deceased denied the accused food. Whenever she tried to raise alarm, the deceased would stuff soil into the accused’s mouth to muzzle her voice. The assaults were perpetrated in incremental phases and were indiscriminate. The weapons which were used alternated between a switch, bare hands and a log. They were also punctuated by threats that he intended to kill her with his knife and axe. At some point he actually pulled out a knife an indication that he really intended to kill her. Fortunately, P wrestled the knife out of his hands. What traumatised her further was that P was not the Good Samaritan she pretended to be because when she took away the knife from the deceased she admonished him not to kill her but to simply beat her to a pulp so that she could die on her own accord in the wilderness. In another extremely humiliating episode during the assaults and torture, the deceased forcibly undressed the accused. Whilst naked she was beaten in front of her male children. He exposed the accused’s genitals to the scrutiny of her male children. In the process he rhetorically asked the boys whether the accused was a woman. To cap his dehumanisation of the accused, the deceased later that evening and in full view of the accused, had sexual intercourse with P who moaned with pleasure as she sat astride the deceased. In the midst of the erotic romp, the deceased announced for the benefit of the accused that P was now his wife. The accused had to either accept it or be relegated to the role of a housemaid. He once again threatened the accused that she would not live to see daybreak as he intended to kill her that HH 736-22 CRB 11/22 night. Fearing for her life, when the two finished their sexual escapades, the accused instinctively rose from where she lay. She picked an axe which was lying next to the deceased. In pre-emptive self-defence she struck the deceased. She argued that she intended to immobilise him and get time to escape. When P rose in the darkness, the accused panicked thinking she intended to get hold of her and finish her off. She also struck P with the axe and bolted out of the room. She did not see where she struck the deceased and was only informed by the police upon her arrest that she had struck him on the chin. As can be discerned from her defence outline, the accused pleaded self-defence and provocation. She told the court that she did not have the requisite mens rea to be guilty of the offence of murder. STATE CASE Prosecution opened their case by seeking the formal admission into evidence of the testimonies of Mukonza Sango, Francis Tafiramutsa and Sibusisiwe Moyo as they appeared in the summary of the state’s evidence in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP&E Act). With the defence’s consent, the evidence was so admitted. It established the following relevant facts: 1. Accused was known by the neighbours as deceased’s first wife. 2. The tragedy occurred around 0030 hours when the neighbour was alerted. 3. The accused was arrested on the same day sitting on a hill barely 2 km away from the scene of crime 4. A warned and cautioned statement was recorded from the accused in accordance with the requirements of the law. In addition to this the state applied to produce as an exhibit the autopsy report compiled by Dr Yoandry Olay Mayedo a pathologist who on 26 November 2020 examined the remains of the deceased in order to ascertain the cause of his death. With the consent of the defence the post-mortem report was accepted by the court as exhibit No. 1 in the trial. The cause of death was therefore uncontentious. The deceased died as a result of brain injury, particularly brain oedema, global subarachnoid haemorrhage and severe head trauma. The prosecution also sought to introduce in evidence, the accused’s confirmed, warned and cautioned statement. The statement was recorded on 7 December 2020 by sergeant Moyo in the presence of constable Jakachira. On 17 December 2020 it was confirmed by a magistrate HH 736-22 CRB 11/22 sitting at Mutawatawa. The statement was admitted in terms of s 256 (1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The defence did not challenge that the statement had been made freely and voluntarily and without any undue influence. Its admission was therefore another common cause factor. The court admitted it and marked it as exhibit 2. In that confession the accused stated as follows: “I admit to the offence of killing my husband. My husband always assaulted me every day. He had sex with me and my daughter during my presence, under the same roof. He forced my daughter to call me sister in law. This tormented me. My husband assaulted me at noon on the 19th of November 2020. I waited until he slept. When it was midnight, I woke up, took an axe and struck him with it on the head once. This happened when he was sleeping with his junior wife who is my third daughter. She is my daughter who I have with another man. My husband was no longer interested in me but in my daughter who is four months pregnant because of him. I was living like a widow because I had lost my own husband to my child. This was tormenting me.” C