S v Nsoro (CRB 57 of 2016; HH 190 of 2016) [2016] ZWHHC 190 (25 February 2016)

1 HH 190-16 CRB 57/16 THE STATE versus FORTUNATE NSORO HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 22, 23 AND 25 February 2016 Criminal Trial Assessors :Messrs Shenje and Barwe E. Nyazamba, for the State J. Bakasa, for the accused CHITAPI J: The accused was arraigned before this court on a charge of murder as defined in s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], it being alleged against her that on 26 February 2015 at house number 18844 Unit L, Seke Chitungwiza, she, the accused acting with an intention to kill, unlawfully caused the death of one, Petros Mutasa, her husband thereat, by stabbing the said Petros Mutasa with knives thereby inflicting certain injuries from which he died on the same date. When the matter was called on 22 February, 2016, the state counsel applied to have the matter stood down to 23 February 2016. He submitted two reasons for seeking the postponement. The first reason was that he needed to make arrangements for the court to sit at the Victim Friendly Court at Harare Magistrates Court. The principal and only eye witness to the stabbing of the deceased and indeed the commission of the offence was the couple’s only child, aged 8 years at the time of the incident. Being a 9 year old juvenile as at the time of the accused’s trial the child could not testify in open court, the practice now being that such witnesses are classified as vulnerable and are afforded the convenience of giving evidence in a friendly environment in which they testify away from the physical presence and direct eye contact of the accused ,members of the public and the court officials other than the trained court interpreter. Before this HH 190-16 CRB 57/16 court can remove to the Victim Friendly Court, there would be need for that court to be gazetted as a High Court sitting venue for purposes of the case. The second reason advanced for seeking the postponement was that both state and defence counsels required time to further reflect on the matter in the light of the defence outline filed on behalf of the accused. The defence counsel also required time to go through witness statements provided to him by the state counsel shortly before trial commenced. It was the request of both counsels that they be given an opportunity to also try and explore ways of curtaining the trial by attempting to agree on mattes which could be agreed upon. As the grounds for the postponement as advanced were meritorious and agreed to by both counsels, the court granted the postponement and the trial commencement was deferred to 23 February, 2016. Upon the resumption of proceedings on 23 February,2016, the accused upon the charge being put to her indicated that she admitted to the charge. Mr Bakasa did not confirm the accused’s admission to the charge as being in accordance with his instructions. He submitted that his instructions were that the accused admitted to causing the death of the deceased but without having the intention to bring about the deceased’s death. He submitted that his instruction was to tender a plea of guilty to the crime of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In the light of the uncertainty surrounding the recording of the plea, the court directed that the two offences of murder as charged against the accused and put to her to which she had admitted to and that of culpable homicide be explained and contrasted for the benefit of the accused to understand the distinction. After the accused had confirmed that she understood the elements of the two offences and how they are distinguished, she then clarified that her plea of guilty was to the offence of culpable homicide and not murder. Mr Bakasa then confirmed the guilty plea as according with his brief or instructions by the accused. A plea of not guilty to the charge of murder was then recorded. Mr Nyazamba was asked whether the state was agreeing to the guilty plea to the offence of culpable homicide as tendered by the accused and he accepted the plea. In consequence of the state’s acceptance to the tendered plea of guilty to culpable homicide (a competent verdict on a charge of murder), the court entered a guilty plea to culpable homicide. Consequent upon the acceptance of the guilty plea, Mr Nyazamaba moved the court to disregard the summary of the state case and to substitute it with an agreed statement of facts HH 190-16 CRB 57/16 which he read into the record with the consent of Mr Bakasa. The statement of agreed facts was accordingly admitted as exhibit 1. Mr Bakasa confirmed to the court that the accused understood and accepted the agreed facts as correct, that he had explained the essential elements of the charge of culpable homicide to which the accused had pleaded guilty and that the accused’s plea was a genuine and informed admission of the offence and essential elements. Accordingly and as a sequel to the confirmations by Mr Bakasa, the court formally convicted the accused of contravening s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as it was entitled to in terms of the proviso to s271(2)(b) of the Criminal Procedure and Evidence Act[Chapter 9.07]. The court was satisfied that on the basis of agreed facts as aforesaid, the accused was guilty of the offence of culpable homicide and noted that the concession by Mr Nyazamba to agree to the lesser charge of culpable homicide was properly informed and given. Having convicted the accused of culpable homicide as aforesaid,Mr Nyazmba submitted that the accused was a first offender. Mr Bakasa then addressed the court in mitigation and he tendered written submissions which he spoke to by emphasizing points made therein. Mr Nyazamba thereafter made his submissions in aggravation of sentence,The matter was postponed to 25 February,2016 to afford the court time to consider the submissions and prepare its reasons for sentence. The following are the reasons for sentence ; In considering and assessing the appropriate sentence the court takes into account what has been submitted by Mr Bakasa on the accused’s behalf as well as the submissions made by Mr Nyazamba for the state. A reading of the statement of agreed facts leaves the court in no doubt that the tragic death of the deceased arose from senseless considerations and could have been avoided if the accused had not allowed her emotions to override reason. The agreed facts without regurgitating them can be summarized as follows: 1. The accused (36 years old) and deceased (55 years) were wife and husband and were at home on the fateful day together with their only child , an 8 year old girl. HH 190-16 CRB 57/16 2. The couple was in their bedroom when around 1900hrs the deceased received a message on his mobile phone. The accused demanded to read the message but the deceased refused to let her read the message nor to divulge to her the contents of the message. 3. It is this refusal by the deceased to divulge the message contents or avail his phone to the accused which angered the deceased and culminated in a heated verbal exchange between the two. 4. The verbal exchange degenerated into a physical engagement with the deceased assaulting the accused with fists and kicking her. The assaultwas perpetrated upon the accused all over her body and was applied upon her indiscriminately. 5. The accused’s reaction to the assault being perpetrated upon her was to run into the kitchen from where she armed herself with three kitchen knives. The kitchen knives all smeared with dried blood were produced as exh 3(a);(3b) and 3(c). Of the 3 knives, one is a bread knife, another one curved and the third one has a straight blade. Although the knives were not measured in their dimensions, this is not an omission of any great moment because what is not disputable is that one or another or all the knives were used to inflict wounds of such magnitude on the deceased as shall be described later. What is however im