S v Paunganwa (CRB 51 of 2015) [2015] ZWHHC 424 (2 March 2015)

1 HH 424-15 CRB 51/15 THE STATE versus LOICE PAUNGANWA HIGH COURT OF ZIMBABWE HUNGWE J MUTARE, 23 & 26 February 2015 & 3 March 2015 ASSESSORS: 1. Mr Rajah 2. Mr Chidawanyika Criminal Trial Ms JR Matsikidze, for the State BN Mungure, 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 & Reform) Act, [Chapter 9:23]. The allegations of murder arose from the events of 9 April 2014 at Chirarwe Village, Mutasa, where it is alleged the accused unlawfully and, with intent to kill, threw Tavonga Mupisaunga, her 3 years old son, into Odzi River. Most of the facts in this case are common cause. These may be set out as follows. On 9 April 2014 the accused took her three children, the deceased, Mitchel Mumbiro and Kevin Chaerera on a journey to Honde Valley. One Maria Nyamubarwa was in their company. She was going to school. Along the way, the accused told Maria to go ahead of them as she may be late for school. Maria did so and left the accused together her three children. When the accused arrived at Odzi River, she stripped the deceased of his clothes and threw him into that river. She continued with her journey. When she was helped to use a foot bridge to cross the Odzi only Mitchel and Kevin were in her company. The following day the accused’s aunt, one Memory Paunganwa, who had earlier on refused to take custody of the deceased learnt that the deceased had been thrown into the river. She advised other villagers of this crime. The villagers mounted a search for the deceased along the river in HH 424-15 CRB 51/15 search of the deceased. The deceased’s body was never found. Accused was arrested and charged with the crime of murder. In her defence the accused admits the facts set out above. She however says that as a result of two failed marriages she had become desperate and confused when her current husband refused to look after the deceased. Her relatives also refused to take him in. As a last resort, she had decided to throw the deceased into the river thereby killing him in order to preserve her marriage to Kevin’s father who was the only person prepared to look after her. Her journey to Honde Valley was undertaken for the sole purpose of placing Mitchel into the care and custody of her father’s relatives, the Mumbiros. In court Maria Nyamubarwa testified that prior to 9 April 2014 there had been an incident in which the deceased had soiled himself. The accused assaulted the boy. On that occasion, the accused uttered words to the effect that the deceased was a bother to him and threatened to throw him into the river. She also told the court that her mother, Memory Nyamubarwa, who is the accused’s aunt, had turned down the request by the accused to take the deceased into her custody. The record reflects that there were two men who were maintaining the foot bridge across Odzi on the day in question. They confirmed that they first saw Maria come and cross the river using the crossing point they manned. Some forty or so minutes later, the accused had arrived with two children, one on her back, the other walking on her own. They had helped her to cross. They later learnt that she had left her residence with three not two children. These two men helped in the search for the deceased without success. The court raised the issue regarding the proof of death since no body was recovered. Ms Matsikidze, for the State, argued that on the basis of S v Masawi 1996 (2) ZLR 472 this court ought to find, on the basis of circumstantial evidence, that the accused killed the deceased her son. The accused literally confessed to the murder. A search only established that the deceased had been stripped naked before being downed by his mother. His clothes were found but not his body. In S v Shoniwa 1987 (1) ZLR 215 (SC) the following appears: “The law is that on a criminal charge the fact that a person was murdered can, like any other fact, be proved by actual evidence or circumstantial evidence, if that evidence leads to that one conclusion of fact, although no body or corpse was found. The court must, as in any other criminal case, be satisfied beyond reasonable doubt of the guilt of the accused person. In order to convict a person where no body has been found there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial, provided it is sufficient to preclude every reasonable inference of the innocence of the accused. See People v Scott 176 Adv Cal 2d 504, 1 Cal Rpt 600 (1960); R v Onufrejczyk [1955] 1 All ER 247 (CA); R v HH 424-15 CRB 51/15 Harry [1952] NZLR 111, McGreevy v Director of Public Prosecutions [1973] 1 All ER 5003 (HL). See also Richard C Donnelly, Joseph Goldstein, Richard D Schwartz Criminal Law at 645-660. In the instant case there is a confession. The court a quo had to look to the confession to prove that the offence must have been committed. The court cannot however, come to that conclusion unless, in terms of s 255B, the offence has been "proved to have been committed" by competent evidence other than the confession. The competent evidence must confirm the confession.” In the present case the proved facts are that the accused embarked on her journey to Honde Valley in the company of one adult and her three children. She devised a plan to get the adult out of the way before they got to Odzi River. The facts show that this adult went ahead and arrived at a foot bridge alone. She crossed the river. When the accused arrived at the same point she had one less child with her. She was assisted in crossing by two men who confirmed that the accused only had two children. She did not raised alarm regarding her son, the deceased. Upon being quizzed about the whereabouts of her son when she got to her destination she lied that the deceased had died some weeks before. The evidence is totally circumstantial. It however points to only one conclusion which is that the accused, and no- one else, killed the deceased. She admits it and explained how she did it. She planned how she would do it, as she stated to Maria the day before, that she would throw him into the river. Careful planning included separating Maria from her and the children, on the day, before they got to a secluded spot she had picked for the purpose. She carried out an act which she had long thought of and whose execution she had settled upon. It cannot be said that she lacked an intent to kill. There is evidence that she announced this intent to Maria when, out of frustration, she said that she will throw him into the river. A person must be assumed to have intended the normal consequences of his or her actions. It is highly unlikely that the boy could have swarm to safety. The river was full of dirty water. The villagers who scoured the area in search of the body could not find it. The boy died by drowning after the accused threw him into the river. This is the only reasonable inference to be drawn in the circumstances of this case. As such this court finds the accused guilty of murder as defined in s 47 (1) of the Criminal Law (Codification & Reform) Act, [Chapter 9:23]. National Prosecuting Authority, legal practitioners for the State Makombe & Associates, accused’s legal practitioners