S v Scenara (849 of 2022) [2022] ZWHHC 849 (23 November 2022)

1 HH 849-22 CRB 28/22 THE STATE versus JOHN SCENARA HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 25 July 2022 and 23 November 2022 Assessors Mr Mabandla Mr Chimonyo Criminal Trial M Mugabe, for the state T James, for the accused MUTEVEDZI J: In S v Tevedzayi1 TSANGA J painted a graphic picture of the amount of violence going on against women in a lot of homes when she said: “An increasing number of cases brought before the courts reveal that far too frequently the bedroom has become a deadly environment for women as a result of men’s violent outbursts in the resolution of disputes. Women have been clobbered, booted, strangled, stabbed, or slashed to death by their spouse in the confines of the bedroom, all the while by men who would have the courts believe that but for their wife’s sluttish conduct, their behaviour was out of the ordinary. These cases reveal the depth of a societal problem of violence where violence in the home has become an all too frequent killer. As often happens where there is a cycle of domestic violence, situations rarely get better but get worse.” Despite listing a whole range of terms which describe how the violence against women is perpetrated the most conspicuous omission HER LORDSHIP made is the verb ‘hewed.’ The axe, an ancient and ubiquitous tool is usually taken for granted yet it has more often than not been employed for murderous purposes across Africa. This case is yet another gruesome illustration of the vulnerability of women in the discourse of gender based violence. John Scenra, (the accused) faces a charge of murder in terms of s 47 of the criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) after hacking his estranged wife to death in the course of a domestic dispute. The allegations are that in May 1 HH 206/2018 HH 849-22 CRB 28/22 2020 at Mun’ando village, Chief Chiranda in Maramba, the accused unlawfully and with intend to kill or realising a real risk or possibility that his actions may cause death and continuing with that conduct despite the risk or possibility struck Mainness Gonde (the deceased) twice on the head with an axe thereby killing her instantly. He pleaded not guilty to that charge. His defence was that he did not kill the deceased. He was equally shocked by the death of his wife. He added that the blanket and t-shirt (a casual top garment so-called because it resembles a ‘t’ shape when spread) are his belongings which had been stolen from him before his wife went missing. He also alleged that he was severely beaten by the police leading to him confessing to things that he had no knowledge of. The State’s case The state opened its case with an application for the formal admission into evidence of the testimonies of Peter Sande, Albert Gonde, Abigail Gonde, Edwin Gavanyika and N’qobile Vuma in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (The CP&E A). With the acquiescence of the defence, the evidence of the witnesses was duly admitted as it appeared in the state’s summary of evidence. The prosecutor also applied for the admission of the post mortem report detailing the cause of the deceased’s death. The application was uncontested. The report stated that the deceased had died as a result of brain injury, global epidural haematoma, left frontal parietal bone fracture and severe head trauma. When the prosecutor sought to tender the accused’s warned and cautioned statement which apparently had been confirmed by a magistrate at Murehwa on 12 March 2021, counsel for the accused sought to object to its production on the basis that the accused alleged that he had been assaulted by the police to make the statement. The objection had no basis given the provisions of s256 of the CP&E A. That section provides that: 256 Admissibility of confessions and statements by accused (1) Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest, or after committal and whether reduced into writing or not: … (2) A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof: Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and if, after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may reopen his case for that purpose. HH 849-22 CRB 28/22 Needless to say, the statement in question was confirmed in terms of the law. The court could not sustain the defence’s objection and was obliged to provisionally accept it. The onus was on the accused to prove that the statement was either not made by him or that it was not made freely and voluntarily. Because the prosecutor had sought and obtained the formal admission of the evidence of virtually all his witnesses and out of an abundance of caution, he called the viva voce testimony of Joeseph Mtombeni, the police officer who recorded the accused’s warned and cautioned statement. Mtombeni said he was the investigating officer in this case. When the case was assigned to him, he proceeded to Mtawatawa to investigate. The body had already been retrieved from the river by ZRP Mtawatawa officers and taken to the local morgue. When he inspected it he noted that it was wrapped in a blanket and black t-shirt inscribed with the words g-tel. his investigations revealed that the blanket and clothing apparel were suspected to belong to the accused. That led to the arrest of the accused. After the arrest the officer said he went through the formalities of recording a warned and cautioned statement from the accused. Having been properly warned and appraised of his rights thereof the accused proceeded to make his statement. The officer denied assaulting the accused or intimidating him in any way to make the statement. Even under cross examination by counsel, he remained steadfast that there was absolutely no influence on the accused person when he made the statement. It became clear that the accused had indeed voluntarily made the statement which had subsequently been confirmed by the magistrate. There was no hint of coercion or any other form of undue influence. Quizzed by the prosecutor on the allegation by the accused that his belongings which were found covering the deceased’s body had been earlier stolen from him, the officer pointed out that the accused had neither reported to the police nor other village authorities about the theft of those items. With that the state closed its case. The court will later revert to deal with the evidence of confession contained in the accused’s warned and cautioned statement. The defence case The accused elected to testify in his defence. In addition to his defence outline earlier in the trial, the accused added that he had separated from his wife in January 2020. Thereafter he used to see her in the neighbourhood. He added that when these allegations arose, the police had forced him to explain to them how he had killed his estranged wife. They took him to Murehwa police station where five detectives who included officer Mtombeni interviewed and assaulted him. He said he ended up confessing to killing the deceased because he realised he could get killed if he did not do so. Yet he knew nothing about that death. He explained to them HH 849-22 CRB 28/22 that there had been a break in at his home in January 2020 during which the b