S v Tagara (239 of 2023) [2023] ZWHHC 308 (31 May 2023)

1 HH 239/23 CASE NO. CRB 52/21 THE STATE versus PINIEL TINOMUDA TAGARA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 28 & 30 March & 31 May 2022 ASSESSORS: Mr Barwa Mr Chakuvinga Criminal trial Ms L Masango, for the State Ms Y Chigodora with Ms R R Mutindindi for the accused MUREMBA J: The accused is facing two counts of murder as defined in s 47 (1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). It is not in dispute that on 13 October 2020 at No. 10, Village 43 Hoyuyu, Mutoko he caused the death of Lizzie Madende by striking her with an axe once on the head just above the left ear and once on the forehead thereby causing injuries from which Lizzie Madende died on the spot. It is also not in dispute that on the same date, time and place, the accused struck Benhilda Nyarambi with the same axe once on the left collar bone and once on the back of the head thereby causing injuries from which Benhilda Nyarambi died three days later. Before trial commenced and as the accused’s counsel was trying to get instructions from the accused in order to prepare the accused’s defence outline, the accused told her that he did not remember what transpired on the fateful day as he had suffered a blackout. The accused indicated that this was an ailment that he had suffered from since he was young. Because of this, the court ordered that the accused be examined by doctors in terms of the Mental Health Act [Chapter 9:23] in order to ascertain whether the accused was mentally disordered at the time he allegedly committed the offences. Unfortunately, the doctors’ reports simply indicated that the accused was well oriented in place, time and person and that HH 239/23 CASE NO. CRB 52/21 he was fit to stand trial. The reports did not speak to the accused’s mental status as at the time he allegedly committed the offences on 13 October 2020. The accused did not dispute the findings by the doctors, but he stuck to his defence of temporary insanity at the time he struck the two deceased. The matter proceeded to trial with the onus on the accused to prove his defence on a balance of probabilities in terms of the proviso to s 18(4) of the Criminal Law (Codification and Reform) Act. This proviso provides that: “Provided that where an accused pleads that at the time of the commission of a crime, he or she was suffering from a mental disorder or defect as defined in section two hundred and twenty-six, or a partial mental disorder or defect as defined in section two hundred and seventeen, or acute mental or emotional stress, the burden shall rest upon the accused to prove, on a balance of probabilities, that he or she was suffering from such mental disorder or defect or acute mental or emotional stress.” The accused pleaded not guilty to the charge. In his defence outline he said the following. On 13 October 2020, he had suffered a blackout and found himself holding a bloody axe with the deceased persons lying on the ground. He did not recall striking anyone of them with the axe. He has always suffered from mental instability from childhood and would have seizures at times and had been treated by traditional healers. He said that he would have periodic bouts of mental instability. He said that on the fateful day, he questioned the first deceased Lizzie Madende who was his paternal aunt about the whereabouts of his traditional medicine known as Chifumuro as she was the one who had moved the tyre in which the medicine was. He then threatened to assault her should she fail to give him the medicine. The accused said that he recalled that the two deceased persons then went away for some few minutes and returned home. They tried to open the door, but he did not recall what happened after that as he suffered a blackout and only regained appreciation of events after the incident when he realized that he was now wielding a bloody axe. He said that he tried to commit suicide, but was restrained by on-lookers. The accused denied intentionally causing the death of the two deceased persons and denied any criminal liability. He said that when he struck the deceased persons, he had completely lost control of his mental faculties to the extent that the factual basis of the allegations had to be explained to him. The State’s Evidence HH 239/23 CASE NO. CRB 52/21 The State produced the following exhibits by consent. Exhibit 2 was the post mortem report for count 1 in respect of Lizzie Madende. The cause of death was concluded as “laceration on the head, compound fracture, left temporal region of skull, hemorrhagic shock secondary to assault.” The deceased was 59 years old. Exhibit 1 was the post mortem report for count 2, in respect of Benhilda Nyarambi. The cause of death was concluded as “severe head injury secondary to assault.” The doctor noted that the deceased had a 10cm laceration on the head and a 10cm laceration on the left collar bone. The deceased was 81 years old. Exhibit 3 was the axe and Exhibit 3B was the certificate of weight and height of the axe. The weight was 1.23kgs. The axe blade measured 8.5cm wide and the length was 25cm. The handle measured 75cm long. Exhibit 4 was the accused’s confirmed warned and cautioned statement in respect of Count 2. In that statement which was recorded on 29 October 2020 the accused said: “I admit to the offence. On the 13th day of October 2020 at about 2000hours, I struck the now deceased Benhilda Nyarambi with an axe. I do not clearly know the reason which caused me to strike the now deceased. I threw the axe towards the now deceased and it struck her on the head. It fell on the left side of the neck thereby injuring her and she fell on the ground.” Exhibit 5 was the accused’s confirmed warned and cautioned statement in respect of Count 1. In that statement which was recorded on 14 October 2020 the accused said: “I admit to the offence. On the 13th day of October 2020 at about 2000 hours, I struck the now deceased Lizzie Madende with an axe once above the left ear and she fell on the ground. I struck her again once on the forehead and she died instantly. She had caused me not able (sic) to pick up my traditional herb which I had dropped.” The evidence of Chiedza Madende, Gilbert Mukanya and Christopher Muzuva was formally admitted as it appears in the State’s summary of evidence in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA). The evidence is quoted hereunder as it appears in the State’s summary. “Chiedza Madende is a female juvenile who will attest that accused is her uncle and deceased one was her mother whilst deceased two was her grandmother. They all resided together. She will state that on 13 October 2020 she was with deceased one and two and Isheanesu Mudhuba at home whereby they were coming from fetching water. The accused was asleep in his bedroom. Deceased one pulled down a worn out tyre that was by accused’s bedroom wall as they intended to offload the drums of water. Accused heard the sound of the trye being pulled off and came out of his bedroom and confronted deceased one. Accused stated that he had hidden his traditional herb in the tyre and was therefore demanding it from deceased one. Deceased one told him that there had been nothing in the tyre. Accused went on to check the tyre physically and found nothing which then infuriated him. Accused then went on to threaten deceased one with an axe demanding his herbs back. Deceased one then threatened the accused by telling him that she would report him to the police if he dared HH 239/23 CASE NO. CRB 52/21 attack her. The witness will state that she in the company of deceased one and two left home and stayed in a nearby bush hoping that when they returned home at a later interval the matter would be over. She will go on to state that when they returned home deceased one was attempting to unlock the door to her bedroom whilst she was standing by deceased one’s right side. Accused approached suddenly from the di