THE State V Lucia Phiri

### Preamble
1
HB 148.20
HC (CRB) 50/20
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THE STATE

Versus

LUCIA PHIRI

IN THE HIGH COURT OF ZIMBABWE

KABASA J with Assessors Mr E Shumba and Mr A Mpofu

GWERU 27 MAY 2020

Criminal Trial

M Shumba, for the state

W Mehlo, for the accused

KABASA J:		The accused appeared before us facing a murder charge to which she pleaded not guilty.

The state alleges that at around 2030 hours on 1st November 2016 the accused and the now deceased were drinking beer at Lifa Investments Bar at Mambowa Business Centre Shurugwi.  They had a misunderstanding which nearly degenerated into a fight but they were restrained.  The deceased subsequently left the bar and the accused borrowed a knife from one Lawrence Munyuki and also went outside.  She then used that knife to stab the deceased once on the left side of the neck and once on the left rib cage before running back into the bar and throwing the knife back to Lawrence.  She was subsequently arrested whilst the deceased was ferried to hospital where she succumbed to her injuries that same night.

A postmortem conducted by Doctor Betancourt on 3rd November 2016 concluded that the cause of death was:-

Hypovolemic shock

Damage of aorta artery

Haemothorax

Stabbing injury

In her defence the accused did not deny stabbing the deceased on the night in question thereby inflicting the injuries from which the deceased died.  She however explained that she was acting in self defence.

The issue therefore is whether she delivered those stab wounds in a bid to save herself from an unlawful attack.

We found this as the only pertinent issue as most of the facts were common cause.  As a result the following were produced by consent:-

The postmortem report number 1002-987-2016

The accused’s confirmed warned and cautioned statement

The okapi knife

The statements of six state witnesses were also admitted into evidence in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07.  The witnesses are:-

Kudakwashe Zvipore

Costein Nyikadzino

Pias Ndoro

Vumindaba Mpofu

Doctor I Betancourt

Handsome Maveta

From the foregoing the following was not in dispute:-

The deceased and accused were at Lifa Investments Bar on the day and time in question.

The two at some stage had a misunderstanding but were successfully restrained.

Later that night deceased left the bar.

The accused who had acquired on okapi knife from Lawrence Munyuki also left the bar.

That okapi knife was later used to stab the deceased twice and she died as a result of the injuries she sustained.

Was the accused acting in self defence when she delivered the fatal blows?

Section 253 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 sets out the requirements for the defence raised by the accused.  Where such requirements are fully met self defence amounts to a complete defence.

These requirements are :-

The accused must be under an unlawful attack

Such attack must have commenced or was imminent.

The accused’s conduct must be necessary to avert the attack after exploring all avenues of escape.

The means used to avert the attack were reasonable in all the circumstances.

We considered the evidence led from the state witnesses in order to determine the circumstances leading to the assault on the deceased.

The first witness was Norest Mlambo.  The gist of his evidence was that he walked to Manjengwa bar and as he went past it he heard a faint cry which prompted him to switch on his torch.  He then observed 2 people, one leaning against the wall and the other with their arm raised in a striking position.  He was able to identify the accused as the one who was wielding a knife in a position that showed one preparing to strike out and the deceased as the one whose back was against the wall.  The accused then fled into the bar whilst the deceased walked towards the direction the witness had come from.  He observed that deceased was bleeding; blood was coming from the neck area and flowing down her blouse.

Norest was adamant that this is what he observed.  He was not shaken under cross-examination.  We got the distinct impression that he was merely relating what he heard and saw and nothing else.

Had he been bent on embellishing his evidence he could easily have placed himself at the scene at the time of the stabbing.  He however candidly admitted that he did not witness the stabbing and so could neither accept nor deny that the accused was defending herself?

Although Norest said he had known the deceased for about 4 years and the accused for about a month his account was dispassionately narrated in a manner indicative of one who had no reason to exhibit bias in favour of any one of the 2 people he observed that night.  He knows the accused as someone who is from the same area he is from and deceased as a person who used to sell wares with her mother at the business centre.

We were impressed with this witness’s demeanour and we were satisfied he was an honest witness whose evidence could be relied on.

Granted his account of what happened when he followed the accused into the bar differed from Denzel’s but we consider the discrepancy as inconsequential as it was not of any significance.  This only related to how the accused was apprehended and nothing turns on that.

Denzel was the second witness.  He was in Manjengwa bar on the night in question.  The deceased was his girlfriend of about 4-5 months whilst the accused was a person from the same neighbourhood.

When he arrived at Manjengwa bar deceased and accused were already there.  The deceased reported to him an incident involving the accused which appeared to bother her but he asked her not to worry about it.  Later on he observed the accused chasing after the deceased round a snooker table which was in the bar.  The deceased managed to evade the accused.

One Killer T who had been sitted with the accused later approached the deceased and went outside with her.  The deceased followed soon after and Killer T subsequently returned into the bar after a short while.  Not long after that Norest then came running and informed him of the assault on the deceased.  The accused also got into the bar and threw a knife which was picked up by Lawrence.

Denzel was not aware whether there had been some discord between the accused and the deceased before his arrival.  He did not witness the stabbing and did not hear what Killer T said to the deceased before walking out with her.

Denzel’s evidence was colourless as regards the circumstances surrounding the stabbing of the deceased.

We were of the view that he did not seek to exaggerate his evidence.  By referring to the incident when the accused ran after the deceased round the pool table his evidence established that whatever discord that was between the two such had started before his arrival.  The report the deceased had made to him appeared to be confirmed by this chase.

It is important to note that Denzel did not want to involve himself in the 2 girls’ issue and never intervened.

The defence sought to suggest that this shows that nothing of the sort ever happened.  We were not persuaded to draw such a conclusion.

Denzel explained why he did not intervene even when he saw Killer T taking the deceased outside the bar.  He thought the issue had been resolved and so did not concern himself.

We did not find anything to criticize about this witness.  He gave his evidence well and was not shaken under cross-examination.  He did not seek to portray what he observed happening between the accused and the deceased in a manner that sought to show that a lot more happened than what actually did.  Had he been bent on lying against the accused he could have embellished his evidence but he did not.

Granted his account on how Norest caused the apprehension of the accused is somewhat at variance with what Norest said.  We have already stated that this discrepancy is of no great significance and does not detract from the overall credibility of the witness.

The mere fact that deceased was his girlfriend, without more, cannot be a reason to reject his evidence.  He was, in our view, a credible witness.

The third witness was Vongai Zindoga.  She was in Manjengwa bar on the night in question.  She however did not see how the deceased was stabbed but assisted her afterwards.

Before the stabbing she had observed the deceased who was by the pool table and accused who was sitted with 2 young men, Killer T being one of them. She observed the accused and deceased exchanging words and pointing at each other but did not hear what this was all about.  They were restrained from fighting by one Handsome Maveta.

The witness left the bar after about 30 minutes and as she and her friend were going home they saw the deceased who was already bleeding profusely and eventually took her to hospital.

Under cross examination she explained that when she first saw the deceased she (deceased) was dancing.  The accused was about 6 m away.  When the two started pushing each other the accused was the one who had moved to where deceased was as the incident occurred closer to where deceased was.  She however did not observe how it started.

This witness just happened to be in this bar but was not in the company of either of the 2 girls, that is, the accused and the deceased.  Her evidence only revealed that the 2 had a misunderstanding and from where it occurred, accused was the one who was most likely to have moved and drawn closer to where deceased was.

We considered her a credible witness who probably did not pay much attention to the accused and deceased.

The last witness was Lawrence Munyuki.  He was in Manjengwa bar on the night in question.  When he got there the deceased reported to him an incident wherein the accused had uttered words which appeared to have bothered the deceased.

His evidence on this point was corroborative of Denzel’s confirming that something had happened between the accused and the deceased before the arrival of both Denzel and this witness.

He too advised the deceased not to take it to heart.  The deceased then went out of the bar.  The accused approached him and asked for his knife on the pretext that a client she had agreed to be intimate with was likely not to honour the payment of her charge.  He gave her the knife and she went out of the bar.  A short while later she came back running and threw the knife at him.  He later learnt of the assault.

Lawrence’s okapi knife was the murder weapon.  It was clear he appreciated the folly of his decision to give the accused this knife as he sought to unconvincingly explain how the accused knew he had a knife and why he gave it to her.

Even accepting that the reason accused asked for the knife was as explained by Lawrence, the fact is she did not ask for this knife in order to go and cut vegetables or a chicken.  She intended to use it on a human being, not to ward off an attack but to use it in case a client refused to pay.  So whichever way one looks at it Lawrence was irresponsible in handing over the knife which he ought not to have been in possession of in the first place as it is an okapi knife.

The witness was aware of this and sought to get one Kudakwashe to hide it before it was eventually recovered by the police.

Besides the lame explanation regarding why he gave the accused the knife, the rest of his evidence was not at variance with the other witnesses who we have already concluded were credible witnesses.

We noted that Lawrence also saw Killer T going out of the bar although he said he went out with the accused.  Of significance is the fact that the accused asked for the knife as the deceased was leaving the bar.

In looking at the witnesses’ evidence we did not lose sight of the accused’s version.

In her confirmed warned and cautioned statement she stated that she had a misunderstanding with the deceased who insulted her and they fought.  They were however restrained from continuing with the fight.

“Lawrence Munyuki who is my friend gave me his okapi knife.  I got out of the bar and opened the knife.  I went to Alice Grace Phiri who was standing between Manjengwa night club and Toendepi shop.  Alice Grace Phiri held me by my hands and I overpowered her.  I stabbed her once on the left side of the neck and once on the left rib cage.  I went back into the bar and gave Lawrence Munyuki his knife.”

This is the statement accused gave a day after the incident.  This was the first opportunity she had to give her side of the story and she did not mention that she was under a heavy attack and used the knife to save her own life.  She actually said she overpowered the deceased when the deceased held her hands, why stab her then, not once but twice?

She would have us believe that she was still shaken, had been assaulted and was forced to give that statement.

We found the accused to be a young lady with very little respect for the truth.  This is why:-

She sought to claim that she was drunk and so was the deceased, seemingly seeking to explain away her action as partly influenced by the effects of beer.  The issue of drunkenness was never raised in her warned and cautioned statement.

Mr Mehlo made an issue out of the fact that the accused had mentioned in her defence outline that she was drinking beer but drinking beer and being drunk are not one and the same.  A person can drink beer and not necessarily get drunk.  The state had mentioned in its summary that the accused had been drinking beer but not that she was drunk.

Why did she deem it necessary to throw in drunkenness when she testified in court?

If this was all we would probably have accepted that maybe she just forgot to mention it but this was not all.

She said she proceeded to Manjengwa bar around 6 pm and saw Lawrence whom she told she was afraid since there were lots of artisanal miners in the area and deceased had threatened her with unspecified action and so she was afraid and requested for a knife.  Asked how she knew he had a knife she said she did not know but he is the one who had asked her whether she wanted something to protect herself with.  She also gave the impression that she just knew Lawrence from seeing him, yet in her warned and cautioned statement she said Lawrence is her friend.

How had she managed to go to this place which she now was so scared to be at because of artisanal miners.  All of a sudden she needed a knife to protect herself from these gold panners?  Again she only mentions this for the first time in her evidence.  It was as if she was building up her story as she went, thinking on her feet and saying that which she thought would sound right and justified.

In her warned and cautioned statement she said she opened the knife soon after Lawrence gave it to her and went to the deceased.  Why would she open this knife and go to the deceased?  Does that show a person on the defensive or on the offensive?

She must have appreciated how damning this statement was and so sought to tell this tale of someone who was under such a heavy attack that she believed she was going to die and so used the knife to save her life.

If there was any truth in that one would have expected her to say so at the very first opportunity she had to state what happened.  It would not have required much to relate such a simple story, after all she was being asked to give a statement explaining how and why she stabbed the deceased.

Listening to her as she went on about how she was being pummeled with fists, choked and with the deceased’s heavy weight pinning her down, we marveled at how she appeared to have an answer for everything.  It was as if she would quickly figure out why a question was being asked and proceed to give an answer which portrayed her as a helpless victim who almost lost her life until she miraculously gained some power, took out a knife that was tucked inside a tight fitting pair of leggings and ‘wave her hand’ which happened to connect with the deceased’s neck and rib cage.

Compared to the state witnesses she lacked credibility and the more she talked the more she lost the little credibility she had.

Having accepted the state witnesses’ evidence as credible, Norest’s testimony showed that the accused’s story cannot be true.  She was startled when Norest approached, why would a person seemingly fighting for her life be startled and proceed to flee if they were indeed justified in their actions?

We would have expected the accused to have welcomed Norest’s presence if indeed she was under attack.  Norest might not have seen the actual attack on the deceased but the fact that both were standing and it was the deceased who had her back against the wall speaks volumes as to what was happening.

Killer T must have facilitated the attack on deceased when he took her out of the bar and then returned, leaving the accused to inflict the fatal blows on the deceased.

It matters not that no one witnessed the assault on the deceased, the deceased may not have lived to tell her story but the cumulative effect of the witnesses’ evidence showed that the accused was the aggressor and had she not followed the deceased after arming herself with an okapi knife, the deceased would not have lost her life.

We are therefore satisfied that there was no self defence to talk about.  The accused was under no attack and she inflicted the 2 stab wounds as the aggressor.

That said, can it be said she desired death and that was her aim and object (State v Herold Moyo HB 19-17)

There is no doubt a knife is a lethal weapon and can have dire consequences when used on a human being.

We do not lose sight of the misunderstanding between the accused and the deceased which preceded the fatal stabbing.

In State v Jealous Tomasi HH 217/16 KUDYA J cited CHIDYAUSIKU CJ’s decision in State v Mugwanda 2002 (1) ZLR 547 (S) where the learned CJ stated that for a verdict of murder with actual intent, a trial court must be satisfied beyond reasonable doubt that the accused desired to bring about the death of the victim and succeeded in doing so.

We are not satisfied that it has been shown beyond a reasonable doubt that the accused set out to cause death and succeeded in doing so.

However by using a knife to stab the deceased not once but twice and on the neck and rib cage with enough force to damage the aorta artery and the left lung she must have realised that there was a real risk or possibility that her conduct may cause death but continued nonetheless despite that risk or possibility.

Her story was shown to be not only improbable but beyond doubt false (R v Difford 1937 AD 373).

In the result, the accused is found guilty of murder as defined in section 47 (1) (b) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.

Sentence

You are a 23 year old first offender.  At the time the offence was committed you were 20 years old.

We accept that 20 is just a year out of the teen years and you were therefore youthful at the time.  It has been said the immaturity of youth makes it odious to impose on them the same sentence that would otherwise be appropriate for a more mature offender (State v Zaranyika and Others 1995 (1) ZLR 270 (H)

You are married with a 2 year old son.  You also look after your 20 year old and 12 year old brother.

You lost your mother at an early age and were looked after by a step mother.  We are informed your upbringing was not the best.  You only went up to Grade 7.  It appears you were left to your own devices at a young age and ended up joining the age old profession which has its own pit falls.

You have mended your ways as we have been told you are now a hairdresser and have been so for the last 3 years.

This offence was committed in 2016; it has taken all of 4 years to finalise. The mental anxiety cannot be underestimated.

Psychologically you will endure a prison of its own kind for the rest of your life as you will live with the guilt that you took a life. You are of ill health, being HIV positive in a prison environment is undoubtedly challenging and might impact negatively on your poor health.

Aggravating is the fact that a life was lost.  The deceased was just 2 years older than you, you were peers.

You robbed her mother, siblings and loved ones of a loved one.

Courts have time without number emphasized the need for respect of the sanctity of life.  As state counsel aptly put it, life is God given, given once and to be lived once, once taken it cannot be restored.  No one has the right to take another’s life.

You stand convicted of murder and so unlike in cases of culpable homicide the punishment is for your evil intent not carelessness (R v Richards 200 (1) ZLR 129 (S)).

The sentence ought to be exemplary and fit you as the offender and the offence.

We would not have hesitated to impose a sentence in the range of 12-15 years but for the mitigatory factors already highlighted.

In the result you are hereby sentenced to 9 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

W Mehlo, accused’s legal practitioners