THE State V Stanford DUBE

### Preamble
1
HB 15-19
HC (CRB) 125/17
XREF ESIGODINI CR 05/4/13
XREF ESIGODINI CRB 211/16
XREF GWANDA P 434/16
---------




THE STATE

versus

STANFORD DUBE

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 31 JANUARY 2019

Criminal Trial

Ms N Ngwenya for the state

G Sengweni for the accused person

MOYO J:	The accused person is facing a charge of murder.  It being alleged that on the 31st of March 2013 and at Getrude Moyo’s homestead the accused stabbed the now deceased Lubelihle Moyo with a kitchen knife once, on the chest, once on the stomach and once on the left eyebrow resulting in her dying from the injuries sustained in that assault.

The following were tendered as exhibits:

-	the state summary

-	the defence outline

-	the accused person’s confirmed warned and cautioned statement

-	the post mortem report.

They were all duly marked.  The post mortem report gives the case of death as

1)	Scepticemia

2)	Multiple stab wounds

3)	homicide

The accused person denies the charge of murder, and admits to only stabbing the deceased by mistake when he intended to stab a rival suitor.

The state called Maxwell Ncube who gave viva voce evidence for it.  He did not witness the assault but he knew that deceased had since married somebody else and that she had jilted the accused.

The deceased had come to report to him earlier on that day that accused had come to her homestead.  Later, on deceased’s brother came to tell him that accused had stabbed the deceased.  They then took deceased to hospital and later learnt of her death after two days.

The evidence of Onwell Hangaiwa and Dr S Pesanai was admitted into the court record as it appears in the summary.  The accused person in his defence outline states that an altercation ensued between him and a rival suitor at deceased’s residence.  That the man overpowered him and he ended up producing a knife and he then stabbed the deceased who had come between him and the rival suitor in order to stop the fight.

In his evidence-in-chief the accused stated the same version although with more detail.  He said the rival suitor came as he sat on deceased’s bed in the bedroom.  He then asked what accused was doing with his wife, he then started beating accused with clenched fists, he beat him on the chest, accused then stood up while the other man held him, he managed to grab a knife on the table and the rival suitor retreated, he then later advanced towards accused who was already armed with a knife, deceased at the same time came between them, resulting in accused mistakenly stabbing the deceased once on the chest.  He threw away the knife and fled.

What the court has to determine actually is, how many times did accused stab deceased?  Was it once, or accused inflicted all the stab wounds on the deceased?

2)	Did accused stab deceased in error while fighting with another man in deceased’s bedroom or accused clearly stabbed deceased with an intention to do just that?

On the facts we have the following:-

1)	Maxwell Ncube told the court that deceased had since jilted the accused according to his knowledge and she had gotten married elsewhere.

2)	On that fateful day, deceased had just arrived from where she had been married.

3)	Deceased had come to report accused’s presence to Maxwell Ncube.

4)	Deceased’s brother came to tell Maxwell Ncube that accused had stabbed the deceased.

5)	From accused’s testimony

-	he stabbed the deceased once on the chest by mistake whilst fighting this other man.  He only stabbed her once and then dropped the knife and fled.

6)	The post mortem report gives four wounds three being stab wounds on the left eyebrow, left chest and right abdomen.  The fourth wound is on the left abdomen.

7)	Exhibit 3 is the accused’s confirmed warned and cautioned statement where the accused person stated thus:

“On the 31st of day of March 2013 and at around 1900 hours I left Mandla Moyo’s homestead where I was staying and cycled to the now deceased’s homestead.  The now deceased was my girlfriend and we were in love.  Upon my arrival I left my bicycle under a tree and knocked at the now deceased’s bedroom and entered into the bedroom.  During that time it was around 2000 hours.  I talked with the now deceased lovely about love for a short period of time.  I do not know what got into me and I took a kitchen knife which I was carrying in my hand together with my bicycle spanners and stabbed the now deceased once on the chest, once of the stomach and once on the left eye brow.  The now deceased screamed and I fled to my residential place.  On my arrival I hid the knife in a cupboard in the sitting room and I went and slept in a mountain.  In the morning I woke up and proceeded to Mbizingwe where I slept for one night.  I woke up at around 0200 hours in the morning and proceeded to Mawabeni where I boarded a lift to Guyu where my mother stays.  I stayed for three days.  Then police officer came looking for me whilst I was sleeping in the fields, I then fled to South Africa.”

There is now a disparity between the accused’s confirmed warned and cautioned statement, where he clearly admits to stabbing deceased three times as per the post mortem report and running away with the knife which he hid in a cupboard at his homestead and the version he gave in his defence outline as well as in court.

The version in the confirmed warned and cautioned statement confirms the state case.  Accused however, seeks to disown the confirmed warned and cautioned statement in that the police hurriedly did it and did not give him time to read it.  That in court he was scared before the magistrate and just admitted to the confirmation of the statement.

The law in relation to the production and challenging of extra-curial statements is as follows:

The manner of production of an accused’s statement made to the police depends on whether or not it has been confirmed by a magistrate.

Where an accused’s statement has been confirmed by a magistrate under section 113 of the Criminal P rocedure and Evidence Act, it must be admitted by the court into evidence on its mere production by the prosecution, without any further proof in terms of section 256 (2) of the Criminal Procedure and Evidence Act.  If accused challenges the admissibility of the statement the onus is on the accused to prove its inadmissibility.  In the judges’ handbook, instances are given at page 80 of valid grounds that an accused person can use to challenge a confirmed statement by showing on a balance of probabilities:

-	that he was tortured, beaten and coerced to make the statement

-	that he was threatened

-	that he was offered some incentive if he admitted to the charge

-	that he had been denied access to a lawyer or his relatives and could no longer bear the isolation.

-	that he had been subjected to intensive, unfair and prolonged questioning, such are the valid grounds for challenging a confirmed warned and cautioned statement.

We do not have such reasons given by the accused person before us.  The accused person has told the court that the police hurried the whole transaction and he just signed without reading, this is not one of the reasonable grounds given for an accused to challenge a confirmed warned and cautioned statement.

In any event, without any duress, even if the whole process had been hurried for arguments’ sale, he had a second chance before the learned magistrate, to tell the magistrate that no in fact I did not apply my mind as I signed that statement and that in fact it did not depict a true picture of what he had told the police.

Again, in this respect the accused gives a flimsy excuse that, he was scared, and yet he does not say that anyone had threatened him.  In fact the whole purpose of confirmation proceedings is to give an accused person a chance to correct any wrongs relating to the statement.  In fact at the confirmation proceedings an accused is even told that once the statement is confirmed, he will not be able to wriggle out of it and that it will be produced as evidence at the higher court without any further proof.  An accused person who does not allege duress, torture or an offer of incentives, cannot expect this court to believe that he accepted the statement when in fact it was not his statement.

In any event the accused person also has the following problems with regard to the warned and cautioned statement.

Firstly, its production was never challenged not even in the defence outline.  Accused just started disowning the statement in his evidence in chief.

Again the evidence of Onwell Hangaiwa, which was admitted into the court record with the defence’s blessing, is to the effect that he recorded a statement from the accused person after he had informed him of his rights.  His evidence is also that the accused person gave his statement freely and voluntarily and that the statement was later confirmed by a magistrate at Esigodini.  This has been admitted by the defence and has been accepted as evidence for the state in the court record.  This, coupled with the flimsy reasons given by accused for disowning the statement leads this court to conclude that the accused person has failed to discharge the onus placed on him by the law in order to sufficiently disown a confirmed and warned and cautioned statement.

The court is of the view that the version given by the accused person in his confirmed warned and cautioned statement is the true version of what transpired on the fateful day for the following reasons:

1)	Maxwell Ncube confirms that accused had been jilted by the deceased and that deceased came to his home to report accused’s presence, deceased’s brother also came to tell him that accused had assaulted the deceased.

2)	The version given in the confirmed warned and cautioned statement is elaborate especially on the assault itself, and it is consistent with the post mortem report which details the injuries sustained by the deceased.

Not only does accused detail how he assaulted deceased, but he also details how he then fled deceased’s homestead with the knife which he later hid in a cupboard at his homestead.

He further details how he fled to South Africa.  The police certainly could not have imparted such information to the accused, he is the only one who was there and who knows what happened as detailed in the statement.  He did not allege that he was beaten and forced to admit or accept information.  The statement thus came from him.  He even confirmed the information before the magistrate.  Confirmation proceedings are meant to give an accused person an appreciation of the seriousness of a statement given to the police and also a chance for him to chicken out of it, if he did not apply his mind.  He is even told of the consequences of a confirmed statement.  This is all done to ensure that he appreciates the gravity of the matter as well as the consequences.  He then cannot be allowed to wriggle out of the statement on flimsy grounds, he must give reasonable and plausible grounds for disowning the statement.  Otherwise the whole purpose of confirmation proceedings will be defeated if an accused person can be allowed to disown a statement just by saying anything.

Defence counsel failed to substantiate his submission that an accused person should be allowed to say just about anything to disown a statement.  He could not substantiate such a submission for there is clearly no such principle in our law.

There are set conditions and precedents as I have already alluded to herein which the court can seriously consider as potential risks of admitting an extra-curial statement.  It certainly cannot be just anything.

It is this court’s view that the accused person dismally failed to discharge the onus on him in accordance with the law.

Not only is that so, but his version given in court was hopelessly hollow.  He told the court that the rival suitor beat him up with fists just on mere entering of the bedroom and that the rival suitor held him causing him to pick a knife to defend himself.  He said once he picked the knife the rival suitor stood aside or retreated, but he went on to charge again towards accused who was armed with a knife and yet he (the rival suitor fought with bare hands.)  Whilst it is not for the court to believe an accused’s version, an accused’s version will still be dismissed where the court is of the view that it is not reasonably possibly true.  The only true version is the one given clearly and concisely in the accused’s confirmed warned and cautioned statement which version accused has dismally failed to disown as we have already shown herein.

It is for these reasons that this court concludes that the confirmed warned and cautioned statement stands unchallenged in the court record.  It has been corroborated by the evidence of Maxwell Ncube who saw deceased’s wounds, it has also been corroborated by the post mortem report as the doctor observed the same injuries that the accused person stated to the police as having been inflicted by him on the deceased.  It is accordingly the finding of this court per the accused’s version in the confirmed warned and cautioned statement that there was never any rival suitor and that accused deliberately stabbed the deceased and not by mistake.

From the nature of the injuries sustained and the lethal weapon used, as well as the parts that were aimed at, the chest and the abdomen, this court does not hesitate to conclude that accused desired death of his victim, death was his main aim and object and as a result accused is found guilty of murder with actual intent.

Sentence

The accused person is convicted of murder.  He is a first offender.  He was 26 years old at the material time.  He is a father of 2 and a sole breadwinner.  He however, brutally assaulted the deceased punishing her for moving on with her life.  A right no person can take away for another.  These courts frown at violence in all forms and circumstances.  A young life was needlessly lost in a painful manner at the hands of the accused person.  The accused person is not even contrite, he fled to South Africa to avoid justice and was only arrested in that country after 3 years.

Even before this court he tried to concoct unsustainable versions and to disown the warned and cautioned statement in a bid to extricate himself from the offence.  He is a hard hearted man, he cannot be said to be suffering from losing a woman that he loved.  He does not care about deceased’s death at all, his efforts to ward off the blame clearly testify to this.  He does not deserve leniency.  He deserves a lengthy custodial sentence, that may perhaps reform him.  The accused person is accordingly sentenced to 30 years imprisonment.

National Prosecuting Authority, the state’s legal practitioners

Sengweni Legal Practice, accused’s legal practitioners