State v Daniel Cohen Nyandoro

### Preamble
1
HH 399-12
CRB 88/12
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STATE

versus

DANIEL COHEN NYANDORO

HIGH COURT OF ZIMBABWE

MUSAKWA J with Assessors

HARARE, 2, 3, 6 and 11 July 2012

Criminal Trial

E. Mungoni, for the state

P. Jonhera, for the accused

MUSAKWA J: It is a paradox that tragedy can befall a Christian couple on their way to church in such an unexpected way as happened in the present case. The accused pleaded not guilty to the murder of his wife. The incident took place on 31 May 2011 at Chingwaru village, Chief Masembura, Bindura.

The accused and the deceased belonged to Harvest House International Church. Being active worshipers within the church they were tasked with recruiting new members with a view to setting up a new branch in Mufakose. They had been married for eight months. Imbued with religious fervour coupled with challenges within their fledgling marriage they embarked on a pilgrimage to seek spiritual uplifting at ZAOGA Prayer Mountain in Bindura.

Having driven up to Chingwaru Village their vehicle ran out of fuel. According to the accused they only had twenty dollars between them. He proposed that they use the money to source fuel but the deceased objected. To the contrary, the deceased who had the money then told him that she was going back to Harare.

The accused could not understand this and pleaded with the deceased. The deceased then crossed the road to the side for Harare bound traffic. The accused followed her. The deceased objected to being followed and the accused asked why the deceased wanted to go with the money leaving him alone. That is when the deceased told him he and his family were poor. She further said his parents were taking care of the offspring of prostitutes. This was in reference to the children of the accused’s sisters. The accused got angry and told the deceased that he was going to beat her.

Whilst still across the road the accused started to assault the deceased. According to the accused he started to assault the deceased heavily. The deceased cried out loudly and as she tried to fight back the accused used his fists. The accused then dragged the deceased across the road to where the vehicle was. He now pitied the deceased and did not want to beat her further. That is when the deceased said she never loved him from the beginning and that she never wanted to marry him. She then said she loved another man. That is when she further stated that when she used to say she was tired after work where did he think she would have been.

The accused said he did not know how he assaulted her. He stepped on her head on the tarmac. He said he did not recall how long he assaulted her. Eventually he said he noted she was no longer responding. He thought she was dead. That is when he dragged her to the bush where the body was eventually found. At the place where he dumped the deceased he then thought of what he termed “stage-managing a suicide”. Thus he took the cloth belt from her waist and tied it around her neck. He admitted that he tied it twice. Thereafter he went to the Police base where he made a false report to the effect that his wife was missing.

The above summary of evidence emanated from the accused. This was an amplification of his defence outline in which he stated that he lacked the requisite intention to kill because of acute emotional stress caused by suspicions that his wife was having an extra-marital affair. It was also stated in the outline that he assaulted the deceased as a result of provocation when she told him he was poor and that she no longer loved him.

Doctor Tendai Kamuriwo who is a District Medical Officer at Shamva Hospital testified in respect of the autopsy he conducted on the deceased. He noted that there was swelling of the forehead, swelling of both eyes and bruising of the neck.

He stated that there were no signs of a fractured skull and therefore no likelihood of severe head injury. However, he did not discount the possibility of internal bleeding from head injury. There was generalised swelling of the head that was independent of the swelling of the forehead.

Coming to the specific terms used in the post-mortem report, he explained that ecchymosis of the right eye related to what is commonly termed a black eye. This arises when force is applied to the eye and there is internal bleeding. The frontal haematoma related to swelling of the forehead. Peri-orbital swelling related to swelling around both eyes. This must have resulted from the effect of pressure that was applied to the neck. In such a case the head becomes congested. The whole head above the neck was swollen.

The cloth around the neck was very tight. It was tied in two knots. When he removed it there were bruises right round the neck. He concluded that the cause of death was strangulation.

The altercation between the accused and the deceased was confirmed by Irene Mapunzira who testified for the state. This witness resides in the same area where the incident took place. On that day she was in the vicinity of the scene of crime in search of reception for her phone. That is when she saw the accused following a woman. The woman crossed the road twice and the accused followed her. The woman then asked the accused why he was following her. She did not hear the accused respond. The two eventually faced each other, with the woman protesting why the accused was following her. Since there is Manhenga Growth Point nearby, the witness assumed these were revellers from that place.

The other witness to testify was David Mavhunga, a resident of Chingwaru village. On that day he was coming from a funeral in the company of a fellow villager when they met the accused. The accused asked them if they had seen a woman clad in a white blouse and a black skirt. When they answered in the negative the accused told them he had left the woman in their vehicle as he went to source fuel. Upon his return he could not find the woman.

The witness remarked where an adult could go at such an open place. That is when the accused asked about the nearest Police Station and they gave him directions. They later met the accused at the Police Base.

After the accused had gone they went to where a Mazda 323 vehicle was parked. The grass around the vehicle was flattened. They followed a track made by something that had been dragged from the scene to some nearby bush. In a shallow pit close to a big tree they found a woman who was lying facing downwards. The person did not show any signs of life. They then went back to where they had seen the vehicle and sent Tatenda Tapfumanei who had a bicycle to make a report at the Police Base.

The rest of the evidence is not in issue. For example’, after Police officers from Bindura attended the scene they caused the accused who had by then been detained at the Police Base to be brought. He initially maintained that his wife had gone missing from the parked vehicle. After further questioning whilst on the way to Bindura the accused eventually confessed.

The confirmed warned and cautioned statement recorded from the accused was produced as an exhibit. The accused’s reply was as follows:-

“I have understood the caution of the allegation. I admit to have assaulted the now deceased with clenched fists as well as booting her several times on the face and head. I then tied her neck with a cloth belt and left her like that. I had no intention of killing her. We fought because she had told me that she never loved me instead she loved another man. The now deceased used to despise my parents accusing them of being unable to educate their daughters to behave because they are having illegitimate children. She used to denigrate me claiming that I was unable to fend for my family.”

In his evidence in chief the accused referred to past incidences pointing at the deceased’s infidelity. The first such was before they got married. He stated that the deceased used to receive text messages and e-mail from a man who was based in South Africa. He eventually confronted the man who apologised. He did not explain the contents of the communication or the man’s name.

The other incident related to a fellow-worshipper whom he thought was too cosy with the deceased. He remonstrated with the deceased who maintained that there was nothing between her and the congregant. He did not pursue the matter any further.

It seems the accused mentioned these two incidences to buttress his assertion that these fuelled his anger at the time he had the altercation with the deceased on the fateful day.

In his submissions Mr Mungoni urged the court to return a verdict of murder with constructive intent. Citing the case of S v Tenganyika 1958 R& N 228(FSC), he submitted that despite being provoked the accused was aware of what he was doing. Taking into account the cause of death, it was his submission that the deceased was still alive when she was strangled.

Further citing the case of S v Turk 1979 RLR 288 Mr Mungoni submitted that it is not enough for the state to prove that the accused knew what he was doing but that he appreciated the consequences of his action. Thus, having assaulted the deceased severely, why did the accused proceed to tie her neck? He also highlighted that the manner in which the notes were tied was indicative of the accused’s appreciation of the consequences of his action. He also referred to the cases of R v Thibani 1949 (4) SA 720 and S v Bureke 1960 (1) SA 49, 1959 R &N 353 (FSC).

On the other hand Mr Jonhera submitted that an accused must appreciate that the injury he intends to cause may result in death but nonetheless inflicts injury regardless of the consequences. He cited the cases of S v Mini 1963 (3) SA 190 and Robert Mugwagwa v S SC 19-02.

Mr Jonhera further paused the question whether the only inference that can be drawn from the facts of the matter is that the accused intended to bring about death. He highlighted that after the deceased lost consciousness the accused believed she had died. He thereafter tied a cloth around the deceased’s neck to simulate suicide. This, he attributed to panic that had gripped the accused. In support of the submission that it is not unusual for a perpetrator of a serious crime to panic Mr Jonhera cited the case of S v Gambanga 1997 (2) ZLR 1 in which the accused, having shot his wife in a fit of rage cleaned the scene of crime, wrapped the body in a tent and took it to his in-laws’ rural home some ninety kilometres away.

As for the test for provocation he also referred to the cases of S v Nangani 1982 (1) ZLR 150 (SC) and R v Majhaye 1965 RLR 106. He submitted that a reasonable person would have lost self-control. Thus he urged the court to return a verdict of culpable homicide.

The starting point to note is that provocation is not a complete defence to a charge of murder. This is by virtue of s 238 which states that:-

“Except as provided in section two hundred and thirty-nine and subject to any other enactment, provocation shall not be a defence to a crime but the court may regard it as mitigatory when assessing the sentence to be imposed for the crime.”

On the other hand, s 239 provides that:-

“(1) If, after being provoked, a person does or omits to do anything resulting in the

death of a person which would be an essential element of the crime of murder if

done or omitted, as the case may be, with the intention or realisation referred to in

sectionforty-seven, the person shall be guilty of culpable homicide if, as a result

of the provocation

(a) he or she does not have the intention or realisation referred to in section forty-

seven; or

(b) he or she has the intention or realisation referred to in section forty-seven but

hascompletely lost his or her self-control, the provocation being sufficient to

make a reasonable person in his or her position and circumstances lose his or

her self-control.

(2) For the avoidance of doubt it is declared that if a court finds that a person accused

of murder wasprovoked but that

he or she did have the intention or realisation referred to in section forty-seven;

or

the provocation was not sufficient to make a reasonable person in the

accused’sposition andcircumstances lose his or her self-control;

the accused shall not be entitled to a partial defence in terms of subsection (1)

but the court may regard the provocation as mitigatory as provided in section

two hundred and thirty-eight.”

In S v Nangani supra which also involved a crime of passion FIELSEND C.J had this to say about provocation at p 159-161-

“The question what is meant by loss of self-control, and how that may diner from a lack of intention are separate matters. As LORD DIPLOCK indicated in Phillips v R (1969) 53 Cr App R 132 at page 135, loss of self-control is not absolute but is a matter of degree: there are many intermediate stages between icy detachment and going berserk. And as SCHREINER JA said in Krull's case (supra) at pages 398-99:

"That acts done after a man has lost control of himself may still in a sense be said to be intended is no doubt true. But also it may fairly be and is, said that such acts are not really intended ... Whether one says that a provoked man loses the power of self-control or becomes unable to form the intention to kill seems to me to be substantially a question of the choice of words. Either form is probably only a roughly approximate description of the actual mental processes Legal systems can only attempt by one approach or another to give effect to Me basic Idea, which is that the  C  provoked person may have been so upset that the mental element requisite for murder may not have been present."

Tenganyika's case (supra) has been followed in this country, despite the criticism of it in Krull's case (supra). See for example R v Bureke, 1959 (2) R & N 353 (FSC); R v Majhaye, 1965 RLR 106. We are not bound by these decisions - see section 24 (2) of the Supreme court Act, No. 28 of 1981 - but unless there is good reason for departing from them we would not want to give a new direction to the law at this stage: Practice Direction (Precedent), 1981 (4) SA 1981.

There are arguments both of principle and expediency in favour of each of the two approaches. The South African approach follows the logical and systematic application of the strict law that an intentional killing of another person is murder unless there is a legitimate excuse, such a justifiable homicide (R v Koning, 1953 (3) SA 220 (T) or self defence (R v Mathlau, 1958 (1) SA 350 (AD)). Toact underprovocation, it is said, is not to act with any justification. As SCHREINER JA put it in Krull's case (supra) at page 399C:

"In self-defence the motive is fear, which from the law's viewpoint is a better motive than anger, which operates in provocation."

Provocation may be an extenuating circumstance and a mitigating factor, but once it is established that a person acted with intent to kill then he is guilty of murder. In my view there are two answers to this view.

First, if the law recognizes that provocation is an extenuating circumstance then there is no question of principle involved in recognizing it as a circumstance which may reduce murder to culpable homicide. It is only a question of the effect to be given to it. Both self- defence and duress - see S v Goliath, 1972 (3) SA 1 (AD) - are now recognized as defences to murder. Either may be a complete defence or may operate to reduce murder to culpable homicide, depending on the facts. But in each case it is accepted that what is excused or reduced is an intentional killing. There is therefore no anomaly in recognizing that provocation may have a similar effect, or at least may reduce murder to culpable homicide even where the killing is intentional.

In the second place to exclude provocation as a defence to an intentional killing is to impose too demanding a standard on ordinary people and to overlook the realities of human behaviour. In practice what may happen when a person is grievously provoked is that he becomes so angry that he intends to kill or to do serous injury to another. That is the position of the classic case of a person who kills his spouse caught in an act of adultery. It is not that he does not realize what he is doing, but that his self-control is so overborne that his intentional killing is partially excused. To require that the loss of self-control must be such that the consequences of the act are not intended is to ignore the true effect of provocation. Further if strictly applied such a test would in very few cases admit of the defence. It must be very rare for a person to be able to say that he lost control of himself to the extent of not intending the consequences of his reaction.

The approach of Tenganyika's case (supra) and of the English common law authorities can be characterized as somewhat unsystematic and as departing from the strict definition of the offence of murder. It can also be said that the approach does not give sufficient weight to the importance of enforcing proper standards in trying to reconcile that aim with the objective of treating the individual fairly. In its favour is that it recognizes that: criminal law must take into account the realities of human reaction to situations of stress.

The choice between these two approaches is to be made rather on considerations of practicality than on strict legal theory. If duress is to be recognized as a complete defence to a charge of murder as a principal offender, as it is in South Africa and as LORD WILBERFORCE and LORD EDMUND-DAVIES would have advised in Abbott v R [1976] 3 All ER 140 (PC) at page 148, then I see no insuperable objection to allowing provocation to operate to reduce murder to culpable homicide even where there is proved an actual intent to kill. Both are defences which make some concession to human weakness, and provided they are suitably circumscribed I see no undermining of the fabric of society by accepting them as defences. The same can be saidof self-defence. This can be a complete defence. It can also reduce murder to culpable homicide if the bounds of self-defence are exceeded to a limited extent. Both are inroads into strict legal logic, and a recognition that an unlawful intentional killing may be something less than murder.

Both as a matter of principle and expediency I would favour the approach enunciated in Tenganyika's case (supra) and since followed in this country. This is not the occasion on which to attempt to lay down authoratively the limitations on the defence. It is sufficient for the purposes of this case to adopt the tests laid down in Tenganyika's case (supra). The provocation must be such as to have actually caused the accused to have lost his self- control, though not necessarily his capacity to intend to kill. The provocation must also have been such that in the circumstances an ordinary man would have lost his self-control and acted in such a manner. The reference to the effect of the provocation on the ordinary or on the reasonable man is not a very satisfactory test to have to apply in a plural society. There is now particularly in South Africa greater stress being laid on the subjective approach to the mental element in crime. It may be that the solution is not to apply the test of the reasonable man, but to bring in the necessary objective factor in a different way. This could be done by requiring that the provocation was such that it could reasonably be regarded as sufficient ground for the loss of self-control that led the accused to act against the victim as he did. This, together with the requirement that the provocation actually caused the accused to lose his self-control, would cover both the objective and subjective criteria that any system requires if proper regard is to be paid to the sanctity of human life and the need to allow of a conviction for murder, the most serious of crimes, in a proper case. They are criteria which were approved by the English Criminal Law Revision Commission (1980) Cmnd. 7844, para 81, and they accord with the reasoning in Tenganyika's case (supra) and in Bureke's case (supra).”

Coming to the facts of the present matter it is accepted that the accused person was provoked by the deceased.  However, although the accused lost self-control this is not the type of provocation which could cause an ordinary person to lose self-control. As William Shakespeare put it through the character Brabantio in the play Othello-

“But words are words, I never yet did hear

That the bruis’d heart was pierced through the ear.”

This is what prompted him to assault the deceased in the manner he described. The circumstances under which the assault took place were such that there was no premeditation. In this respect he did not mean to bring about the deceased’s death in the actual sense.

However, by his own account he assaulted deceased with fists and booted feet indiscriminately. He stepped on her head whilst she was lying on the tarmac. He assaulted her until he realised that she was helpless. According to him, the deceased was no longer moving. He then believed that she was dead. Despite not recalling the number of blows he directed at the deceased, the accused could recall the steps he took from the time he commenced to assault the deceased.

It is the explanation he proffered in respect of the strangulation that defies logic. It is improbable that a person can strangle themselves without suspending themselves from somewhere as the accused sought this court to believe. In the first place his confirmed warned and cautioned statement never made reference to the deceased passing out before the accused tied the cloth around her neck. Therefore, the assertion that he panicked and sought to simulate suicide was an after-thought in the quest to run away from the warned and cautioned statement.

The knots tied around the deceased’s neck were very tight. Given the explanation by the accused in the warned and cautioned statement he must have realised the real possibility that such an act may cause death but left the deceased in such a state. Such conduct can only import intention. The accused gets the benefit of the doubt as regards whether he actually intended to bring about death. I say so because he acted impulsively although the ultimate act of strangulation might almost be viewed to have a sadistic tinge to it.

Accordingly, the accused is found guilty of contravening s 47 (1) (b) of the Code.

Attorney-General’s Office, for the State

Wintertons, accused’s legal practitioners