The State v Brighton Mahara

### Preamble
1
HB 152/20
HC (CRB) 45/20
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THE STATE

Versus

BRIGHTON MAHARA

IN THE HIGH COURT OF ZIMBABWE

KABASA J with Assessors Mr. E. Shumba and Mr. S. Mpofu

BULAWAYO 12 JUNE 2020

Criminal Trial

Pedzesayi, for the state

W. T. Davira, for the accused

KABASA J:	The accused appeared before us on a charge of murder to which he pleaded not guilty.  His defence being that although he visited the deceased’s shop earlier that day he however was not there at the time of the murder as he spent the night in a truck with his friend.

The deceased, Marvelous Dhaukire was employed as a tuck shop attendant at Plot number 9 Village 14, Shurugwi.  On the 6th of January 2019 she was alive and was last seen by Portia Takarisima who was also employed as a tuck shop attendant at Village 14.  The deceased was her aunt who worked at the adjacent tuck shop.  On the night of 6th January 2019 the deceased came to her tuck shop around 20:00 hours to while up time and left at around 20:30 hours.  Portia escorted the deceased back to the tuck shop where deceased worked and where she also used to sleep.

The following day, the 7th January 2019 the deceased was found dead at a nearby mountain.  The tuck shop where she worked and had slept had been ransacked.  The police attended the scene and following investigations arrested the accused for the murder of the deceased.

The evidence linking the accused to the murder comprised of a confirmed warned and cautioned statement, indications made to the police and circumstantial evidence.  No one witnessed the murder and so there was no direct evidence linking the accused to the murder.

Most of the facts were common cause.  To that end the post mortem report, property recovered following police investigations and 10 of the 13 witnesses’ statements the state had lined up to testify were produced by consent.  The 10 witnesses’ statements were admitted into evidence in terms of s314 of the Criminal Procedure and Evidence Act, Chapter 9:07.

The post mortem report established the cause of death as:

Subdural haemorrhagic traumatic shock

Severe brain contusion and burns

Head trauma and 75% burns

The confirmed warned and cautioned statement explained how deceased met her death and how the injuries observed by the pathologist who conducted the post mortem were inflicted.  The confirmed warned and cautioned statement reads:

“I admit to the charge of killing Marvelous Dhaukire.  On the 6th of January 2019 on the afternoon, I left my house at number 2591, Ascot Infill, Gweru and proceeded to Village 14, Valley, Shurugwi.  In my possession I had a black bucket and a kitchen knife with a red handle.  Upon arrival at Village 14 tuck shop, I bought sadza and super beer from Matekenya tuck shop.  I also bought a Mirinda drink from the tuck shop where the now deceased Marvelous Dhaukire worked.  When I finished eating and drinking, I proceeded to Jabulani Matekenya’s homestead where I stole a container full of used oil from his bedroom.  I then went to a nearby bush where I hid myself until it was dark.  During the night at about 22:00 hours I went to the tuck shop where the now deceased worked and upon arrival, I knocked at the door but there was no response.  I uprooted a shorter wooden pole which was at the door of the tuck shop and gained entry.  When I got inside I took soap, kapenta and cooking oil and took the goods outside, whilst the now deceased was fast asleep.  When I grabbed a packet of rice, now deceased woke up, stood up and started screaming.  I rushed and grabbed the now deceased by her neck and ordered her to remain silent and threatened to kill her if she kept on screaming and she complied.  I then raped her once.  After raping the now deceased, I told her that we were going together to Gweru so that she will become my wife and she complied.  The now deceased then started packing her clothes in her black bag with two belts and two wheels.  We started to pack some of the groceries and carried them to the nearby hill where we hid them.  We loaded the remaining groceries in a grey bucket.  We also loaded other groceries in my black bucket and in a sack.  We started moving due west of the tuck shop and the now deceased was in front.  I was carrying the now deceased’s bag and a grey bucket with decorations which I took at the scene together with a sack containing groceries which I had taken at the shop.  We started walking along a path which is near a mountain and the now deceased was carrying a black bucket.  I placed down the bucket that I was carrying, picked up a small stone and struck the now deceased on her head and she fell down.  I put down all that I was carrying and I picked another bigger stone and further struck the now deceased on the head once.  I took the red five litre container of oil and poured it on the body of the deceased and set it on fire.  I dragged the body of the now deceased off the road and left it by the ditch on the road side.  I took the now deceased’s bag containing her clothes and went to a nearby hill where I dumped the clothes in a pit.  I took the now deceased’s identity card and I hid it under a stone close to the pit.  I took the bag of the deceased and loaded it with groceries which I had taken from the shop and I proceeded to look for transport to Gweru.  I boarded a commuter omnibus proceeding to Gweru and I dropped off at Guinea Fowl. I sold five litres of used oil for $10, 00 to the driver.  I boarded another white commuter omnibus to Gweru.  I went to my house and I put the groceries inside the house.  I advised my wife Primrose Dodo, that I had bought the groceries.

I took the deceased’s bag again and went back to Village 14, Valley, Shurugwi intending to collect the stolen groceries that I had hid in the bush. Whilst on my way I heard people discussing that a dead body had been discovered at Village 14 and that the police were in the area and I decided not to drop at Village 14 and I went to Village 10 where I dropped deceased’s bag at the shops.  I went back to Gweru.  When I reached home I took mahewu, matemba, cooking oil, Mirinda drinks, salt and I gave them to my wife to use at home.  I sold the remaining groceries to vendors at Ascot, Gweru.”

This statement was recorded on 5th February 2019 by detective Sergeant T. Manyika and witnessed by Detective Sergeant W. Nyaira.  The accused was taken to court on 7th February 2019 and the statement was confirmed by a magistrate.

In terms of s256 (1) of the Criminal Procedure and Evidence Act, Chapter 9:07

“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 persons 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.”

Section 256 (2) thereof goes further to say:

“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.”

The accused said although the statement was confirmed he did not make it freely and voluntarily and he was not able to tell that to the confirming magistrate because there were 4 policemen in the courtroom and they had threatened to take him for further  assaults should the statement not be confirmed.

The law says in such circumstances the onus is on the accused to prove the inadmissibility of the confirmed warned and cautioned statement.

Detective Sergeant Taurai Samanyika who recorded the warned and cautioned statement gave evidence.  He denied forcing the accused to make a statement and explained that he advised the accused of his rights including the right to legal presentation but he had no money to engage a legal practitioner.  At the confirmation proceedings the detective was seated outside the court room.

In response to the allegation that the police had duped the accused into believing that they were going to court for confirmation and then the accused will go home for more indications, the witness said:

“That is a pathetic lie.  I was in charge of the investigations.”

We were satisfied that the witness was being truthful.  He candidly admitted that he had been to the scene of the murder before the accused’s arrest and so the recovery of the deceased’s body, some groceries and the deceased’s clothes was not dependent on the accused’s indications.  The witness knew the way to the crime scene and had made observations there before the accused made indications.

Had he been bent on lying and building up a case against the accused he could easily have embellished his evidence but he did not.  Unlike in S v Woods and Others 1993 (2) ZLR 258 (S) where statements recorded from the accused were deemed inadmissible because they had not been allowed proper and meaningful access to their legal practitioners before the recording of such statements, in casu, the accused was duly advised of his rights and there was no suggestion that he was denied access to a legal practitioner.

The allegation of duress was devoid of any detail and we got the distinct impression that it was really a last ditch effort to disown a statement given freely and properly confirmed.

Confirmation proceedings are held in camera and we have no reason to doubt Detective Sergeant Samanyika’s testimony that no police officer was in court at the time of such confirmation.  The accused also confirmed the magistrate put all the questions meant to ascertain that such statement could validly be confirmed.  No impropriety has therefore been shown regarding the confirmation proceedings.  The witness gave his evidence well and without rancor.

Winnois Nyaira who witnessed the recording of the warned and cautioned statement had his evidence admitted by consent.  It is important to note that it was his evidence that the accused gave his statement freely and voluntarily and he was in his sound and sober senses.

Whilst an accused is entitled to challenge the admissibility of a confirmed warned and cautioned statement such challenge ought to be shown to have some credence and not a product of someone who has had a change of heart and as an afterthought decides to allege duress.  Granted the onus on the accused to prove the inadmissibility of such a statement is not onerous it is only on a balance of probabilities but the point is there must be that proof.  We were of the view that the puerile allegations of duress and impropriety in the confirmation proceedings remained as just allegations and the accused got nowhere near discharging that less onerous onus of proving the inadmissibility of the confirmed warned and cautioned statement.

The statement itself is so detailed, detail which was not really necessary for a police officer bent on manufacturing evidence to include.  The accused admitted that he was the one who gave the detail to the recording officer, detail which only a person with intimate knowledge of the incident would have known.

In S v Edward Dima Bhebhe SC-129-02 MALABA JA (as he then was) cited, with approval, the case of R v Sambo 1964 RLR 505 at 511A-G where BEADLE CJ said:

“If the accused mentions facts in his confession the knowledge of which he could only have come by being connected with the crime the mention of such facts, will, of course, be most cogent evidence to show that the confession is genuine.  But even if the accused may have been questioned by the police on these very facts, their mention still has considerable probative value.  If an accused freely makes a long statement and all the known facts fitting their proper sequence into this statement, this may often be sufficient reason on which to base a conclusion that the confession is genuine, even if the police may previously have questioned the accused on these facts.  Because unless the police put the actual words of the statement into the accused’s mouth, if his only knowledge of the facts has come from police questioning he is hardly likely to present a coherent and convincing story into which all the known facts dovetail perfectly.  A confession of such a type will often, therefore, itself, prove its genuineness.”

This exchange between the state counsel and the accused is worth reproducing:

“Q	-	You agree that the contents of the warned and cautioned statement came from your own mouth?

A	-	Yes

Q	-	So it is not the police who put the words into your mouth or mind

A	-	No

Q	-	What do you mean?  Are we agreed it was not the police who fed you with the information in the statement

A	-	They are

Q	-	Your only contention is that you were forced to make that statement

A	-	Yes

Q	-	Agreed the statement gives a graphic account of what happened at the scene of crime

A	-	Yes

Q	-	We are agreed when offence was committed none of the police officers was present.

A	-	No

Q	-	What do you mean?  Are you saying police officers were present when the offence was committed?

A	-	I wouldn’t know since I also wasn’t there.”

The foregoing exchange left us in no doubt that the accused’s answers were not making much sense because he was trying to come up with a story which story was not based on the truth and so it was not easy to weave it into anything meaningful.

We were consequently satisfied the statement come from him, he was not forced to make it and it was subsequently confirmed.

The statement provided detail which dovetailed with what was observed at the scene, showing that it was not a product of a very fertile imagination.

In S v Freddy Ndlovu and Another SC 135-04, GWAUNZA JA (as she then was) referred to the case of S v Tsorayi 1985 (1) ZLR 138 (HC) wherein the court quoted with approval from R v Sylees (193) 8 CR App R on the correct approach to adopt when dealing with confessions.

“The first question you ask when examining the confession of a man is, is there anything outside it to show it was true?  Is it corroborated?  Are the statements made in fact true?  Is it consistent with other facts which have been ascertained and which, in the case, (are) proved before us.”

The post mortem report showed no skull fracture which confirms the accused’s description of the size of stones used to inflict the injuries.  The burns observed on the body confirmed the accused’s description of how he poured used oil on the deceased and set her alight.

The issue of why the deceased’s clothes were found strewn in a ditch and how they had left the tuck shop which doubled as her lodgings was answered by the accused in his confession.  So too was the issue of how the grocery items left the tuck shop and why they were recovered in the bush.

Besides the detailed confirmed warned and cautioned statement, the accused also made indications to the police.

Whilst there is little or no probative value with regards to the indications of where the deceased’s body was recovered as well as her clothes and part of the groceries, the recovery of the deceased’s bag, plastic identity card, bottle of black nail polish and white pant was made possible through the accused’s indications.

It therefore can be safely said:

“But for the accused’s indications the police would not have known where to find the deceased’s black bag, plastic identity card, pant and nail polish bottle.”

The accused sought to suggest that he was forced to make such indications and was being told what to do.  This begs the question; “How could the police tell him what to do and where to go when they had no idea of where these items were?  Granted the body had already been found by villagers, the clothes and the groceries and so the police did not need the accused to assist in that regard.  However the deceased’s bag was recovered 4-5km away from the scene and the other items 600m from the scene.

The bag is the same one accused explained in his statement that he was taking with him to go and get those groceries he had left hidden in the bush but aborted the mission and dumped the bag when he boarded a commuter omnibus in which the passengers therein were talking about the murder and that police were in the area.

Exhibit 12 which is a photograph showing where the bag was clearly shows attempts were made to conceal it under logs.  The accused said he dumped the bag at Village 10 after he decided not to proceed to Village 14, confirming Detective Sergeant Samanyika’s evidence that the bag was found 4-5 km away from the scene.  In that bag was a paper identification document in the name Margaret Dhaukire, a person who shares the same surname with the deceased.  Exhibit 11 which shows the accused rolling over a stone under which the deceased’s pant, plastic identity card and black nail polish bottle  demonstrates that the police would not have rolled over that stone and would not have known there was evidence under that particular stone had the accused not made such indications.

We have already ruled out that the issue of duress in the recording of the statement and we rule out duress in the making of these indications.

The accused’s lame explanation was clear from the exchange he had with state counsel:

“Q	-	The bag which was deceased’s was recovered through your indications

A	-	I saw that deceased’s bag being recovered from the motor vehicle at the shops and it was given to me and a photo of me was taken

Q	-	But before that we see that bag under some logs.  Who put it there?

A	-	I do not know

Q	-	And you want the court to believe that the Investigating Officer and other police officers planted all this in order to implicate you

A	-	Yes”

Where were the police supposed to have found the bag and the deceased’s personal items for them to plant them?  The allegation is so ridiculous it does not stand up to scrutiny.

We must however pause here just to emphasise the point made during the trial that when police officers take photographs during indications they should not write captions which are in themselves statements attributed to the accused. Such amounts to introducing statements through the back door and police officers should desist from such practice.

A number of photographs were not admitted into evidence precisely for that reason.  A statement made during the course of making indications is no less a statement just because the police officers are out in the village for the purpose of indications only.  Where statements are made accompanying the making of such indications, they should be properly introduced into evidence either as confirmed statements or upon a proper foundation establishing that such were made freely and voluntarily and therefore admissible. (S v Ndlovu 1988 (2) ZLR 465 (S)

The pointing out of the places where these crucial items were found, even if we had been persuaded to hold that the pointing out was under duress, such evidence of the pointing out is still admissible.  The pointing out and the recovery of these items speaks volumes to the accused’s source of such knowledge. (S v Nkomo 1989 (3) ZLR 117; S v Juma SC-172-88)

We turn now to the circumstantial evidence.  The state led evidence from Desire Chidembo.  On the 7th of January 2019 he diverted his normal route so as to pick up passengers who were stranded.  As he passed by a certain bush he saw the accused.  The area he saw the accused turned out to be close to the murder scene.  The accused had a grey 20l container, a red 5l container which had what the accused had said was diesel but turned out to be used oil, 2 heavy bags, one of which was not completely closed and the witness noticed rice and flour as part of the contents.

The accused appeared anxious for his luggage to go whilst he remained behind waiting for this witness who had promised to pick him up on his return journey.  The witness bought the contents of the 5lt container for $10 believing it was diesel.  The accused confirmed selling that same used oil to the witness in his warned and cautioned statement.

The 20lt grey container was identified by the deceased’s employer as part of the items taken on the night her tuck shop was broken into and groceries stolen.  The same night the deceased was last seen alive.  The accused confirmed taking such a container in his statement and accepted that the police recovered it in his home area.  His home is about 20km from the village where the murder occurred.  It was the accused’s story however that such container was recovered from his neighbour.  Why would the police be searching his neighbour’s home?  The bucket was recovered from his home because he is the one who had taken it there.  We got the impression that the accused was quick to distance himself from anything that would remotely link him to the offence.

Granted the two containers were not peculiar to the extent that they could only have been the only ones of the kind.  It can however not be a coincidence that the grey 20lt container found at accused’s home, which he also mentioned in his statement, was identified by Evelyn Muchakami as her property which was part of the items stolen from her tuck shop on the night of 6th January 2019.

It can also not be explained as mere coincidence that Jabulani Matekenya whose 5lt container accused admitted taking from his home confirmed that indeed that container was no longer in his house and it contained used oil.  That same red container is the one accused sold to Desire which was later handed over to the police and identified by Jabulani as the one similar both in description and contents to that which was stolen from his home.

Desire and Jabulani gave their evidence well.  They gave the impression of people merely relating what they knew to have happened.  Their evidence did not seek to say more but was confined to matters which did not in themselves prove who the deceased’s murderer was.  Jabulani was candid in his admission that the red container which was produced as exhibit 4 was the same as the one stolen from his house but had no distinct identifying marks for him to categorically state that it was his.  Such an admission could only be taken as evidence of a witness who was not out to embellish his evidence.

The defence took issue with the fact that the witness had not been forthcoming with the information that the accused had sold a radio to him on credit for which he partly paid for with items of grocery.

We did not find this as detracting from the witness’ credibility.  The 2kg packet of sugar and the beer he admitted giving to the accused could not have been what was contained in the 2 heavy bags Desire carried for him a day after the murder.  Desire’s description of the bags and their weight dovetails with the accused’s confession regarding the contents of those bags.  They were heavy with the groceries taken from the tuck shop.  Jabulani confirmed seeing the accused at Village 14 the day of the murder, the same day the accused admitted he stole the red 5l container with used oil from Jabulani’s home.

The foregoing evidence, the accused’s confirmed warned and cautioned statement and the indications pointed irresistibly at the accused as the one who murdered the deceased.

Mr. Davira made an issue out of the fact that the blood, oil used to burn the body and the burnt clothes which were sent for forensic examination’s results were not followed up.

Granted the police could have done more, that is in trying to trace the vendors to whom the groceries were sold; interviewing accused’s wife pertaining to the groceries accused brought home and following up on the results of the forensic examination.  The issue however is the effect of that failure by the police to do more. We believe such a failure would have dealt the state’s case a fatal blow had there been no other satisfactory evidence linking the accused to the offence.

Whilst the police are encouraged to “over investigate” rather than decide not to pursue leads which are relevant for the simple reason that they think such leads are not necessary given the charge being levelled against an accused, we did not find that the lack of forensic results weakened the state case to such an extent as to cast doubt as to the identity of the person who murdered the deceased.  The forensic results may or may not have proved the rape but such proof is not what the state case was hinged on.

We accept that the accused only needs to state his version and not convince the court on its truthfulness, no matter how improbable such a story may be, the court cannot dismiss it unless it is proved to be beyond doubt false (R v Difford 1937 AD 370), such a story must not be looked at in isolation but in light of the totality of the evidence.

The accused’s obvious attempts to completely distance himself from the detailed warned and cautioned statement he gave, his contrived defence outline which sought to introduce an alibi 2 days before trial, his ridiculous explanations regarding the indications which led to the recovery of the deceased’s personal property including the bag in which was the deceased’s relative’s paper identification card, left us in no doubt that his story was not only improbable but beyond doubt false.

He was not a credible witness and fared badly under cross-examination.  If there was any truth in the defence outline, the detail therein is what he would have told the police when he was afforded the first opportunity to do so.  That said, the evidence showed that the deceased died at the hands of the accused.  The next question is whether the accused desired such death and succeeded in achieving that?  (S v Robert Mugwanda 2002 (1) ZLR 574 (SC)).

The accused hit the deceased with a stone on the head with such force that she fell.  He then hit her again on the head with another stone.  A stone by its very nature can cause damage when used to hit a human being.  The blows were aimed at the head, a very vulnerable part of the body and with such force to cause bleeding in the head and severe brain contusion.

This assault followed an unlawful entry and theft of groceries from the premises.  The deceased was set alight causing 75% burns, this can only speak to a perpetrator who desired to cause death and set out to achieve that purpose.

The accused intended to kill and succeeded in killing the deceased.

The state proved its case beyond a reasonable doubt and the accused is consequently found guilty of murder as defined in s47 (1) (a) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.

Sentence

In assessing sentence we have considered the circumstances under which the murder was committed.

Both state and defence counsel agree that the murder was committed in aggravating circumstances.  The deceased was threatened with death when she woke up and the taking of property after such threat amounted to robbery.  S47 (2) (a) provides that it shall be an aggravating circumstance if the murder was committed in the course of or in connection with robbery among other offences.

The circumstances in casu show that the murder was committed in connection with a robbery.  Further the deceased did not voluntarily leave her place of abode but it was against her will, she was therefore deprived of freedom of bodily movement constituting kidnapping.  The murder was therefore committed in aggravating circumstances.

However, as regards the rape we agree with defence counsel’s submission that there was no evidence aliunde proving the rape, for that reason we will not consider rape as another aggravating factor.

You are a first offender, married with one minor child.  You look after an aged mother since your father is late.  You also look after your sister and her 2 children.  You only went up to grade 6, you therefore can be described as an unsophisticated “village boy”.  You were in pre-trial incarceration for over a year.

Aggravating is the fact that you took a young life, the deceased was only 19 and you cut short a life in its prime.

Your actions caused a painful loss to the deceased’s loved ones, depriving them of a daughter, sister, aunt and niece.  She did not live to have her own family as you have.  The courts have time without number emphasised the sanctity of life.  Society expects no less, people ought to respect the sanctity of life.

Courts should therefore be seen to mete out sentences that send the message loud and clear that the taking of life will be suitably punished.  We are aware of the fact that your indications and confessions assisted the police in their investigations.

We are cognizant of the fact that where there are aggravating circumstances the penalty is death, life imprisonment or a term of imprisonment of not less than 20 years.

In light of the mitigatory factors and the fact that we did not make a finding that you also raped the deceased, we are of the view that the penalty need not be the ultimate that is the death penalty.

You are however a threat to society and should be removed from it for the rest of your life.

For these reasons you are accordingly sentenced to imprisonment for life.

National Prosecuting Authority, state’s legal practitioners

Gund, Dube & Hamandishe accused’s legal practitioners