The State v Peter Nyathi

### Preamble
1
HB 56.20
HC (CRB) 42/20
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THE STATE

Versus

PETER NYATHI

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr  Damba and Mr Mashingaidze

BULAWAYO 19 & 20 MARCH 2020

Criminal Trial

T Muduma, for the state

L Chimire, for the accused

MAKONESE J:	On the 22nd of October 2018 around 1300 hours, Shella Moyo (the deceased), Lilly and Laiza Gumede left their homes in Cowdray Park, Bulawayo for Esiphaziphazi Mountains in search of firewood.  At around 1700 hours the three ladies made their way back home.  Along the way the ladies decided to rest at some place in the bush about a kilometre from Cowdray Park.  At that time accused passed on his way towards the mountain.  The accused exchanged greetings with the deceased and her colleagues.  A little while later the deceased together with Lilly and Laiza Gumede resumed their journey towards their homes.  After taking another rest the accused reappeared and passed the ladies.  The accused suddenly emerged behind Lilly Gumede and held her by the neck.  Lilly dropped her firewood and accused jumped away.  Lilly ran away screaming with the accused in hot pursuit.  The deceased confronted the accused in a bid to rescue Lilly.  Accused charged towards the deceased and as she ran towards the mountain, he caught up with her and struck her once with a log on the head.  The deceased fell down unconscious.  The accused sexually ravished the deceased in her unconscious state.  He then dragged her into a maize field before fleeing the scene.  The deceased died on the 24th October 2018 from injuries sustained in the attack.

The 29 year old accused appears in this court on a charge of murder.  It being alleged that on 22nd October 2018 and at a bushy area in Cowdray Park, the accused assaulted the deceased with a log on the head intending to cause her death or realising that there was a real risk or possibility that his conduct may cause the death of the victim. The accused pleads not guilty to the charge of murder.  He admits striking the deceased with the log but denies that he intended to cause her death.  Accused tenders a limited plea to the lesser charge of culpable homicide.  The state correctly rejected the limited plea and the matter proceeded to a full trial.

The state tendered an outline of the state case which now forms part of the record.  It shall not be necessary to repeat the contents of the state outline.  The bulk  of the facts are common cause and not disputed.  The accused tendered a defence outline whose contents are as follows:

“He will plead not guilty to the charge of murder as defined in terms of section 47(1) (a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  He will plead guilty to a lesser charge of culpable homicide, in that:

He has never intended to kill the deceased.

He has never pre-meditated to assault or kill the deceased or at all.

He only saw the deceased together with two other ladies at first when he was going to the mountain to collect herbs.

He saw the deceased with the two ladies for the second time on his way back from the mountains when they were seated along his path way.

The deceased shouted and provoked him by calling him a serial murderer who kills people in the bush.

He confronted the deceased with the intention to inquire the reason why she was insulting him when he was not known to her and the other two ladies.

The deceased then suddenly took a log from her firewood and assaulted the accused once on the head and twice on the shoulder

He managed to grab the log from the deceased and assaulted her in self defence.

He will deny ever raping or sexually assaulting the deceased or at all.

The state shall be put to the strictest proof thereof

Wherefore the accused will pray that he be found not guilty of murder but guilty of culpable homicide.”

The state produced and tendered into the record a Post mortem Report compiled by Doctor I Jekenya, a pathologist based at Mpilo Hospital.  After an examination of the remains of the deceased the doctor concluded that the cause of death was:

intracranial haemorrhage

head injury

physical and sexual abuse (raped)

On marks of violence the pathologist observed that the deceased had a bruised face and head.  There was a wound on the deceased’s upper lip (3cm) satured.  There was evidence of brain haemorrhage with parietal subdural clots and traumatic subarachnoid haemorrhage.  An examination of the genital organs revealed that deceased had a bruised introitus (entrance into the vaginal canal).  Deceased’s vaginal wall was bruised.  There was evidence of copious amounts of thick seminal fluid like substance.  The Post Mortem Report confirms that the deceased had been raped after the murder.

A report prepared by Zephania Dhlamini of the National University of Science and Technology Centre was also tendered by the state.  The report concluded that the blood collected from the accused’s blood stained clothes matched that of the deceased after, DNA testing of the blood samples.

The log that was used in the attack was produced by consent as an exhibit.  The log is 87cm long.  It was recovered from the crime scene.

The State Case

The state led viva voce evidence from LAIZA GUMEDE.  The witness resides in Cowdray Park.  On the day in question she, the deceased, and Lilly Gumede went to Esiphaziphazi mountains to fetch firewood.  After collecting firewood she and her colleagues embarked on their journey back home.  Along the way they sat in the bush to take a rest.  At around 1700 hours they saw the accused walking in the opposite direction towards the mountains.  The witness observed that the accused was putting on jeans and a dark navy jacket.  After walking for a short while the witness and her colleagues took another rest.  At that stage they observed the accused walking past them.  Shortly afterwards, the witness heard the deceased and Lilly screaming and asking her to run away.  The witness and Lilly managed to escape from the attack by the accused.  The deceased was not so lucky.  She was struck with a log on the head and fell down unconscious.  The witness went to seek assistance from residents at Cowdray Park.  When they returned to the scene they observed that the deceased had been dragged some 20 metres into a maize field.  The deceased had been raped.  The deceased’s panties were picked on the road side by this witness.  She handed them to the police.  The witness admitted that she did not witness the assault as she was walking ahead of the deceased.  She denied that deceased had provoked the accused in any manner whatsoever.  When the witness returned to the scene the injured deceased was conveyed to Mpilo Hospital.  She was unconscious.  The accused had fled the scene and was nowhere in sight.

The evidence of this witness was clear and straightforward.  She was not contradicted under cross-examination.  She gave her evidence in a calm manner.  We found her evidence to be credible and reliable.  We have no hesitation in accepting her testimony as an accurate reflection of the events as she perceived them.

The state then called WILBERT TICHAONA TIGERE, as its second and last witness.  He is a Detective Sergeant in the Zimbabwe Republic Police attached to CID Homicide Section.  He has been in the Police Service for 19 years.  He was the Investigating Officer in this case.  The witness visited the scene of the crime and recovered a log which had been used in the attack.  The witness tracked the accused following enquiries with his wife.  He was advised that accused had gone to Shangani where he was involved in artisinal mining activities.  He arrested the accused on murder allegations at Bulawayo Prison.  Accused had been detained earlier on different charges. He took accused to United Bulawayo Hospitals for a blood sample extraction.  The witness recovered accused’s blood stained clothes from his house.  Accused person’s blood sample, the blood stained clothes and deceased’s blood samples were taken to NUST for DNA analysis.  The results obtained from NUST indicated that the DNA samples from accused’s clothes matched those of the deceased.  On 30th October 2018 a formal identification parade was conducted at ZRP Bulawayo where the witnesses Laiza and Lilly Gumede positively identified the accused.  This witness gave his evidence well.  His evidence was of a formal nature.  He was not contradicted in any material respects under cross-examination.  We accept his evidence as a credible and consistent narration of the events as they occurred.

The state sought and obtained formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  In this regard, the evidence of the underlisted witnesses was admitted into the record as it appears in the summary of the state case, namely:-

Lilly Gumede

Labion Moyo

Sikhulile Tshuma

Andrew Mupanduki

Sinothile Dube

Doctor Tanaka Matsa

Otwell Mudyazvavanhu

Livingstone Matienga

Dr I Jekenya

The state then closed its case.

Defence Case

The accused, PETER NYATHI elected to give evidence under oath.  He largely adhered to his defence outline.  The accused admitted assaulting the deceased with a log once on the head.  The accused contended that he had been provoked by the deceased who had shouted at him saying that he was a serial murderer.  The accused’s defence outline and accused’s oral testimony on this aspect differed in that in his evidence in chief he suggested that he overheard the deceased who was seated by the roadside informing Lilly Gumede that he (accused) was a serial murderer.  The accused stated that this angered him and he confronted the deceased seeking clarification.  The accused averred that the deceased picked a log and struck him on the left side of his neck and shoulder.  The accused dispossessed the deceased of the log and hit her once on the head and she fell down unconscious.  The deceased did not get up again after the attack.  Accused denied ever raping the deceased and said he left the scene and was standing at some distance from the crime scene when the residents from Cowdray Park arrived at the scene after the assault.  Accused said he was shocked when he heard deceased referring to him as a murderer.  When pressed to explain what he meant by that, accused said that he was confused when he attacked the deceased.  Accused said he used moderate force when he delivered the single fatal blow.  He swore that his aim and object was to hit the deceased on the shoulder in order to inflict pain on her.  This line of defence is wholly inconsistent with the defences  of  provocation and self defence.  The accused was not under any attack from the deceased.  He was the aggressor.  Mr Chimire appearing for the accused conceded that in terms of section 253 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), the defence of self defence was not available to the accused.  This is principally because the conduct of the accused in warding off any attack was extremely disproportionate to the initial attack, if any.

The totality of the evidence adduced in court shows that the deceased was dragged for some 20 metres, from where she was originally attacked by the accused.  The accused could not reconcile his version of events with the location of the deceased after the fatal assault.  Accused confirned that he was the last person to be seen with the deceased alive after her colleagues Laiza and Lilly had escaped from the scene.  Not only was the deceased found unconscious in a maize field away from the crime scene, she was found to have been sexually abused.  Her panties were found on the side of the road by Laiza Gumede.  No one other than the accused could have removed the accused’s panties.  No one other than the accused could have possibly had sexual intercourse with the deceased within the 15 minutes or so when Laiza and Lilly went to seek help from Cowdray Park.  The accused’s defence collapsed due to the weight of the evidence against him.

ANALYSIS OF THE EVIDENCE

Where an accused person tells a lie this will in certain circumstances provide corroboration of evidence of his guilt.  This principle of the law was laid out in the case of State v Mhlanga 1987 (1) ZLR 70 (SC).

In this matter, the Supreme Court laid down the criteria to be applied where a lie told by an accused could provide such corroboration.  The criteria is as follows:

The lie has to be deliberate.

The lie has to relate to material issue.

The statement has to be clearly shown to be a lie by evidence other than that of a witness or an accomplice but by admission or by evidence from an independent witness.

On the evidence led the accused lied in the following respects:

That he used moderate force in assaulting the deceased.

(ii) that he did not drag the deceased 20 metres from the scene of the attack.

(iii) that he did not sexually molest the unconscious victim

(iv) that the blood on his jean trousers was caused by blood splattering on him during  the assault.

There is evidence from the Post Mortem Report that excessive force was used in inflicting the injuries reflected in the report.  The deceased sustained intracranial haemorrhage.  There is evidence in the Post Mortem report that deceased was sexually abused.  No one other than the accused could have possibly had a sexual encounter after the accused had fatally assaulted her.  There is undisputed evidence that the deceased was dragged into a maize field after she had been attacked.  Her   undergarments  were found some metres from the scene of the attack.  Common sense and logic suggests that the deceased could not have removed her own panties after she fell unconscious.  All  the evidence points at the guilt of accused.  The blood stained jean trousers and jacket had blood samples which matched the DNA of the deceased.  The accused must have had sexual intercourse with the deceased after she fell unconscious.  That is the reason why the blood stains were on his jean trousers.  All the lies told by the accused provide corroboration of his guilt.

Accused could not totally deny the offence due to the overwhelming evidence against him.  For that reason the accused tendered a plea to the lesser charge of culpable homicide.  We agree with Mr Muduma, appearing for the state that this is a clear case of a murder committed in aggravating circumstances.  The accused attacked the deceased in order to incapacitate her.  He then proceeded to sexually ravage her in her unconscious state.

It is our view, that the state succeeded in proving beyond reasonable doubt that accused caused the death of the deceased.  Accused struck the deceased with severe force on the head.  She fell down unconscious.  He dragged her away for 20 metres after raping her.  The deceased,   according to accused’s own admission,  never got up again after he attacked her.  Accused desired to bring about her death and to conceal the crime dragged the deceased from the scene.  He then fled the scene.  He did not render any assistance to the injured victim but went into hiding until his arrest.

In the result, and accordingly, we find the accused guilty of murder with actual intent.

Reasons for sentence

We found it extremely difficult to find words to describe the dreadful crime for which the accused has been convicted.  The deceased was aged 42 years old.  She, like many women who strive to fend for their families, went to the mountains in search of firewood.  She looked forward to going back to the comfort of her home in Cowdray Park.  The accused brutally cut short deceased’s life.  He attacked a defenceless woman by striking her on the head with a log.  She fell down.  She was not able to get up again.  She fell unconscious and died at Mpilo Central Hospital days later.  Not satisfied with just killing the victim, accused decided to quench his bizzare sexual desire by sexually ravaging an unconscious woman.  Accused ’s  conduct on that day was utterly disgusting and sadistic. Accused went to great lengths to cover up his criminal conduct.  He peddled a tissue of lies to his wife about the blood stains on his jean trousers.  He persisted with those lies in this court.  We did not detect any flicker of remorse or contrition when accused appeared before us.  As agreed to by both defence and state counsel, this murder was committed in aggravating circumstances.

We have taken into account all the mitigating features of the case as articulated by accused’s legal counsel. Accused is a first offender who tendered a limited plea of guilty with respect to the lesser offence of culpable homicide.  We shall, as we must, take into account the period of incarceration before your trial.  Having said all this, we find you to be a callous, calculative and cruel individual.  The only appropriate sentence, having taken into account all the circumstances of the case, should have the effect of permanently removing you from society.

We accordingly sentence you as follows:

“Accused is sentenced to death”

National Prosecuting Authority, state’s legal practitioners

Liberty Mcijo & Associates, accused’s legal practitioners