S v KARADZANGARE

HIGH COURT, HARARE

[Criminal Trial HH 794-16]

July 18, 19 and 20, 2016

CHITAPI J

Criminal procedure - Sentence - Conviction on plea of guilty - Entitlement of court or prosecutor to question the accused person for purposes of extracting information relevant to sentence.

Held, that s 271 (5) of the Criminal Procedure and Evidence Act [Chapter 9:07] allows both the court and the prosecutor to put questions to the accused person which may have some bearing on sentence. The provisions of this section should be used sparingly and only in circumstances where the court or the prosecutor hold the view that there are pertinent facts relative and material to the assessment of sentence which the accused person needs to shed light on.

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], ss 47, 49 (a)

Criminal Procedure and Evidence Act [Chapter 9:07], s 271 (5)

Marriage Act [Chapter 5:11]

F Zacharia, for the State

S Evans, for the accused

CHITAPI J:

The accused was charged with murder as defined in s 47 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. It was alleged against the accused that on 24 December 2015 at Muringamombe Primary School, Shamva, he unlawfully assaulted Meggie Mariko with open hands, pushed her against the wall and strangled her resulting in her death.

When the charge was put to the accused and the court thereafter asked him whether he understood it, he responded as follows: "Yes, but it was not my intention to kill her". The court entered a plea of not guilty. Ms Evans for the accused tendered on behalf of the accused a guilty plea to the lesser offence of culpable homicide which is also a competent verdict on a charge of murder. Ms Zacharia accepted the tendered plea of guilty to culpable homicide.

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Both counsel advised the court that they had crafted a statement of agreed facts which they tendered to the court. The statement of agreed facts was read into the record and accepted as Annexure A. The court sought and received confirmation from Ms Evans that she had explained the elements of the charge and the agreed facts to the accused and his agreement with the same. The court formally convicted the accused of culpable homicide as defined in s 49 (a) of the Criminal Law (Codification and Reform) Act. In addition to the statement of agreed facts, the State also produced with the consent of the accused person given through his counsel the autopsy or post-mortem report compiled by the doctor after examining the remains of the deceased.6

The material facts of the case which arise from the statement of agreed facts can be summarised as follows:

1. The accused and the deceased were of about the same age (32 years). The accused was unemployed whilst the deceased was a student teacher at Maringamombe Primary School, Shamva. The two stayed together at the school and were husband and wife with the latter being heavy with child and in her eighth month of pregnancy.

2. On 24 December 2015 the couple had a domestic altercation which started around 5:00 pm and continued during the night extending into the morning of the following day. What triggered the dispute was not quite disclosed to the court even when it put questions to the accused during mitigation and aggravation.

3. Albeit the trigger of the domestic quarrel not having quite been established it was accepted in the agreed facts that in the course of arguments between the couple, the deceased accused the accused of being infertile. The accusation infuriated the accused who all along held the belief that he was responsible for the deceased's pregnancy and was looking forward to fatherhood of his first child.

4. Following the verbal exchanges, the accused decided to take leave of the house and the deceased and started to pack his clothes. The deceased then ordered him not to remove any clothing from the house since the clothes had been bought by her as the accused was unemployed.

5. In a fit of anger, the accused then turned physical on the deceased. He assaulted the deceased with open hands and threw her against the wall. When she hit against the wall, the deceased fell down. When she had fallen down the accused throttled her on the neck until she was still. He then left her lying on the mattress.

6. The accused proceeded to the local business centre and spent the day drinking alcohol. He returned to the couple's house at night and discovered that the deceased had died. The accused wrapped the deceased's body in sheets and secured the wrapping using a rope. He carried the deceased's body out of the house and buried it in a shallow grave which he dug some 80-100 metres away from the house.

7. The body of the deceased was discovered by another person on 18 January 2016. Investigations were then carried out and they culminated in the arrest of the accused on 19 January 2016.

It was on the basis of the summarised facts above that the plea bargaining between the State and defence counsels and the grounding of a plea of guilty of culpable homicide was based and the court recorded and accepted the facts as such.

After the State counsel had rested her submissions in aggravation, the court considered it necessary for purposes of gathering more information which would assist it to properly assess sentence to put questions to the accused. Such a procedure is provided for in s 271 (5) of the Criminal Procedure and Evidence Act [Chapter 9:07] where an accused has been convicted of an offence following a guilty plea. Section 271 (5) provides as follows:

"271 Procedure on plea of guilty

(1)-(4) ...

(5) Where an accused has been convicted in terms of this section, the prosecutor and the court may, whether or not he gives evidence, question him with regard to sentence and, if the accused is represented by a legal practitioner, his legal representative may thereafter question him subject to the rules applicable to a party re-examining his own witness."

Note must be taken that the questions which the prosecutor and the court may put to the accused in terms of this section must be relevant to sentence and not conviction. The provisions of this section must be used sparingly and only in circumstances where the prosecutor or the court hold the view that there are pertinent facts relative and material to the assessment of sentence which the accused needs to shed light on. If not properly invoked and utilised, there is a danger that the procedure may degenerate into a mini trial and some questions if not properly measured may solicit answer which may lead the court to reconsider its verdict as the answers may raise a defence. It is also admissible where the accused is represented to elicit the relevant facts which need filling up by directing questions to the accused's counsel who can always approach the accused with the leave of the court to solicit the answers. Lastly, where the provisions of the section have been invoked and the accused as in casu is represented, defence counsel should strictly be guided by rules relating to re-examination. The questions which defence counsel may ask the accused should arise from questions by the prosecutor or the court as the case may be by way of clarifying any points or facts adduced during questioning by the prosecutor or the court. The procedure is not designed to give the accused's defence counsel a second bite of the cherry to mitigate on sentence or elicit from the accused new facts in mitigation save as the same may arise from questions put to the accused by the prosecutor or the court.

In casu, the court exercised its discretion to put questions to the accused and he did respond whilst on oath. In answer to questions by the court the accused stated that he married the deceased in terms of the Marriage Act [Chapter 5:11] and the marriage was solemnised by the magistrate on 31 October 2014. He went to school up to O-Levels which he completed in 2001. He did not attain any post O-level qualifications. Asked to shed light on what triggered the altercation between him and the deceased, the accused stated that the two had been scheduled to spend Christmas day at his in-laws place by invitation of the in-laws. The deceased woke up very early whilst it was still dark and wanted to start off for her parents' home. The accused tried to persuade her to wait until it was light but the deceased insisted on leaving. This argument then degenerated into further arguments during which the accusations of infertility of the accused were made as well as the allegation that the pregnancy which the deceased was carrying was not fathered by the accused.

Asked to clarify why he buried the deceased instead of simply owning up to other persons since death was unintended, he blamed his actions on fear of his parents, deceased's family, the community and he also blamed his actions on the beer which he had imbibed at the township. He said that he was confused. He only owned up following the discovery of the body by a third party. He said that he used a hoe to dig the shallow grave and buried the deceased's body at night. The defence counsel asked the accused to tell the court what he had to say about his behaviour and he said that his actions were unexpected and he needed to compensate the deceased's family.

The nature of the quarrel between the accused and the deceased though touchy did not call for the use of violence on the part of the accused. The deceased's verbal outburst that the accused was infertile cannot have been a wholehearted accusation given that the parties were married and had been staying together for a long while. The parties had married officially in October 2014. An accusation that the accused was infertile must have been uttered to simply hurt his ego because it would have been tantamount to confessing that the deceased had an extra marital relationship. Such a confession is not easily made by any sane woman who is married. The deceased also further hurt the accused's ego by demanding that he should not take away any items of clothing because he did not buy the clothes as he was unemployed. The deceased did not chase away or order that the accused should leave. This can only mean that she still was interested in the continuance of the relationship. The accused's use of force was not only uncalled for. It was not measured because he even threw the deceased against the wall. As if this was not enough, he went on to throttle the deceased. Throttling a person causes such person not to breathe. The deceased after being throttled became helpless and lost consciousness. The accused thought that the deceased was playing up feigning unconsciousness. It was grossly negligent on the accused's part to think that the deceased was feigning unconsciousness yet the accused had throttled the deceased. It is arguable that he could well have been convicted of murder as defined under s 47 (1)(b) of the Criminal Law (Codification and Reform) Act on the basis that he ought to have realised that by engaging in an assault upon the deceased in which he used his hands, threw the deceased against the wall and proceeded to throttle her, that death could result from his conduct and proceeded in so acting. The nature of the provocation which the accused alluded to as having made him assault the deceased was not in the circumstances such as should have made him lose his head. In fact, he only lost his head it would appear after the deceased had ordered him not to pack his clothes as he had not bought them. His reaction to the accusation of infertility was to decide to take leave of the house which was reasonable. The court will however accept that the totality of the provocative acts or utterances by the deceased would have had a cumulative effect. The circumstances of this case nonetheless remain borderline between murder and culpable homicide and the accused benefited from the doubt.

Considering the accused's degree of culpability or level of negligence which has been found to be gross and taking into account all the circumstances of the case involving mitigating and aggravating circumstances and societal interests, an appropriate sentence in this matter is as follows:

The accused is sentenced to 12 years' imprisonment of which four years' imprisonment is suspended for five years on condition that the accused is not within that period convicted of an offence involving the unlawful taking away of another person's life for which he is convicted and sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, for the State

Mabuye Zvarevashe, accused's legal practitioners

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