THE State V Never Nyamundoma

### Preamble
1
HH 808-18
CRB 45/18
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THE STATE

versus

NEVER NYAMUNDOMA

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 11 JUNE 2018, 19 & 20 SEPTEMBER 2018, 23 NOVEMBER 2018

Criminal Trial

Assessors: 	Mr Shenje 
Mr Noko

D Chesa, for the State with Ms P Havazvidi
T Matemachani, for the accused

TSANGA J: The accused, who was the deceased’s husband faced a charge of her murder. The accused’s wife went to fetch water from the well and never returned. She had instead been found strangled to death a few hours later that day. She was a mother of two at the time to a one year old and a six week old baby. The case against him was based wholly on the tally of cumulative circumstantial evidence.

His trial was initially scheduled for 11 June but on that day his lawyer, who had interviewed him, told the court that he had reason to believe that the accused should be examined under the Mental Health Act. He was said to have a lot of inconsistencies in his story and his lawyer rightly wanted to be certain that he was fit to stand trial. He was sent for examination and the report said he was fit to stand trial. The trial proceeded on the 20th of September 2018. Four state witnesses pieced together the circumstantial evidence that the state relied on.

The Evidence

Zvipamhe James was the first to testify. She had been working in her employer’s maize field when she heard the accused call out from on top of a tree. She had left what she was doing and looked up to ask what he wanted. Her initial instinct had been one of mistrust as she thought that maybe he was a sexual assailant. He had assured her that he meant no harm. He had asked her to accompany him to the well and had told her that his wife was with a boyfriend at the well. There he had told her to listen out on account that if she did so she would hear the deceased laughing with her boyfriend. As they approached the well, he had distinctly asked her to avoid a specific direction, explaining that he had seen a snake in the direction she had wanted to take. He had told her to stop and call out his wife’s name as she would hear her and her boyfriend. She had heard nothing. She had also seen nothing at the well save for a bucket of water which belonged to his wife which bucket the accused now wanted her to carry. Being fairly old, she had refused on account of her leg. He then said that his wife had run away to the next farm with her boyfriend. The accused had also mentioned that he was going to take rat poison upon she had enquired what he had done to want to resort to such a drastic measure. She had then gone back to work in the field whilst the accused had proceeded to his Aunt Dorothy Mukanda’s residence.

Dorothy Mukanda too gave evidence. The accused is her brother’s son. He indeed came to her homestead running and screaming with his hands on his head. He looked like someone who was losing his mind. He was agitated and asked her to accompany him to look for his wife. She had told him she was hungry and needed to cook something but he had snatched the pot away from her and literally pulled her along. He had run ahead of her to the well and had climbed up a tree. She had observed a bucket nearby as well as his bicycle which he explained was malfunctioning.

She had told him that she was coming to where he was and that point he had indicated to her which direction she should use as he said he had spotted a snake. At the well she had observed what she said were the deceased’s footprints upon which she had asked the accused if he had assaulted his wife and surmised that perhaps she had run away on hearing his voice. She had called out her name to come out from where she was hiding assuring her as she did so that the accused was not going to harm her. It had been to no avail. She had gone back home as had the accused. She told the court that although the deceased and the accused rarely visited her she knew that that their union was a troubled one as he was always accusing her of infidelity. She told the court the accused’s wife was very young and estimated her age at around 15 or 16 at the time she married.

The accused behaviour had been odd. He had taken his phone and given it to her and also started calling out to others to help him look for his wife. Back home he had also called out to his mother -in law who lived nearby who had immediately told him that if he no longer wanted to stay with her daughter he should just bring her back. He had also said that he was going to Pondorosa farm with his older child leaving the young one behind. She had dissuaded him pointing that it would create problems for him to disappear since his wife was missing. She had later gone to the well and on her way from there had heard the accused call out that his wife had been found and that she had been raped. There was an argument about how he had known where his wife’s body was. She had been found strangled with a wrapping cloth.

Matthew Kaundura also gave evidence. He knew the accused and was friends with his brother. On that day he had come home at about 10am and had seen the accused slap one Farai who lived next door to him on the pretext that she was the one influencing his wife to be a prostitute. He had enquired about what was happening and the accused had informed him about his missing wife. The witness had joined a search party. The accused had directed them. As they searched the accused had remained behind them as they ploughed ahead. After a short while they had heard him shouting at the top of his voice that the accused had been killed and raped. He had immediately gone to where the accused was shouting from and had found him pulling his wife’s legs from the anthill. He had immediately stopped him from touching the body on the grounds that this was a police case. He told the court in cross examination that the way the accused discovered the body was as if he knew where the body was. He further explained that as they got towards the well, the accused had insisted on giving directions to take to the well before shortly thereafter shouting out that the deceased had been killed and raped. It was as if he had literally gone to where the body was.

Ronald Munonoki stationed at CID Chinhoyi was the investigating officer. He told the court that the offence had been committed near where the body had been discovered. He told the court that the deceased was about 21 or 22 years old. This age had been established from the accused since the deceased had no birth certificate. There were drag marks from the well to where the body was found. The body also had bruises from being dragged. He had observed that the deceased was wearing two pants and that these had been torn. Investigations however had not revealed any sexual assault. According to him the simulated rape scene had been a mere cover up.

He told the court that his investigations had revealed that the deceased had woken up at about 8 am and had initially gone to the river and not the well with Farai to fetch water. Upon her return she had done some dishes and at around 10 am had this time gone to fetch water from the well which was about 1 km from the compound.

He had also unearthed that the accused had in fact not wanted her to go to the well. As he put it he had denied her “permission” because he wanted her to cook for him so he could visit his brother. She had left the children with Agnes Tembo, a relative who was staying with them. He also told the court that the accused had been arrested because “all arrows” to use his words, pointed to the accused. Asked to elaborate on what these were, he listed the following:

The place where the body was found was the place where he had strongly prevented Zvipamwe James from passing through. He did not want Zvipamwe James to pass through the very place. He had deliberately lied that he had seen a snake.

He had also deliberately dissuaded his aunt Dorothy from taking the same path. This was said to be an indicator that he knew where the body was.

Whilst he had denied others from taking a certain direction, he had taken that very direction himself when he announced his wife’s discovery.

Although the accused had said his wife was with a boyfriend, he had refused to supply any name of the boyfriend. He had found no substance to the allegations of infidelity and told the court that they were mere suspicions.

He too confirmed that the couple had a troubled union from his investigations.

Significantly he also told the court that although the accused had said he was at home, investigations had revealed that he had left home after fixing his bicycle and had been gone for a while before returning. He had been away from 30 - 40 minutes. When he came back the baby was crying. Agnes Tembo had asked him if the mother had returned from the well. The accused indicated she had not. It was at that point that he had gone to Farai.

The evidence of Doctor Gonzalez who did the post mortem report was admitted in terms of s 314 of the Criminal Procedure and Evidence Act. [Chapter (9:07]. The report described her as 21 years old. Notably, her body had multiple bruises on the face head, neck, thorax and abdomen. She had died of asphyxia / strangulation.

The accused’s evidence

The accused’s evidence was that he had left at 10 am, the same time his wife went to the well and he had gone to see his father. On his way back he had seen his niece who had gone to the well to look for his wife. He said he had taken his bicycle and followed her to the well. He had only seen children at the well. He had called out his wife’s name and it was then that Zvipamhe James had responded upon hearing him. He had told her that his wife had not returned and that he had only seen a bucket and a container at the well. He had left his bicycle there when he left for his aunt’s place because he said he would have had to take a longer route if he had cycled. After seeing his aunt, he had gone to his in laws and from there had gone to see Farai before teaming up with six others to look for his wife.

He told the court that it was one Prince who had discovered his wife and not himself. He denied telling Zvipamhe James that he had seen his wife with a boyfriend or that he wanted to take rat poison. He denied having had a quarrel with his wife earlier that morning. He denied having any marital problems whatsoever. He denied assaulting Farai. He denied telling his aunt that he wanted to leave and go to Pondorosa farm. He denied giving her his phone or that his behaviour was odd. He equally denied telling Zvipamwe James, Dorothy and members of the search party that were helping him to look for his wife to take a specific direction to the well because of a snake. He denied having a conversation with his mother-in-law in which she had indicated that if he was failing to live with her daughter, he should simply give her back. He equally denied that there were allegations of infidelity. In other words, he basically refuted all the witness evidence as being founded on lies.

Asked about his act of malingering that had earlier on delayed the take-off of the trial, he told that court that he too had been surprised when a mental examination had been ordered as he was not a mental case and had never been one.

The legal position on circumstantial evidence

The case is indeed built on circumstantial evince whose test as laid out in R v Blom 1939 AD is that for inferential reasoning to hold sway:

The inference sought to be drawn must be consistent with all proved facts

The proved facts should be such that they exclude every reasonable inference save the one sought to be drawn.

For the application of this test in our own jurisdiction see Attorney General v Paweni Trade Corp ( Pvt) Ltd 1990 (1) ZLR ( SC) at p 32C, R v Sibanda & Ors 1965 RLR 363 (A), S v Hartlebury 1985 (1) ZLR 1 at p 7B;  S v Shoniwa 1987 (1) ZLR 215 (SC); S v Marange & Ors 1991 (1) ZLR 244 (SC) at 249 B-C; S v Tambo 2007 (2) ZLR 33; State v Rugara & Anor HH 582/17;

What the State must satisfy the court is “not that each separate item of evidence is inconsistent with the innocence of the accused, but only that the evidence taken as a whole is beyond a reasonable doubt inconsistent with such innocence”. The courts, in other words, always consider the cumulative effect of items of circumstantial evidence. Before convicting on circumstantial evidence it is necessary to exclude every reasonable hypothesis not consistent with guilt. We proceed to analyse that evidence.

Analysis of evidence

Zvipamhe James was told by the accused that his wife was with her boyfriend and that if she listened, she would hear the accused’s wife laughing with that boyfriend. If indeed the deceased had been alive and well with her boyfriend then the witness would have heard her especially since the accused himself claimed that their laughter was audible enough to be heard. He himself claimed to be hearing them. Zvipamhe was working in the field close to the well and yet she had not heard any laughter at the time. She had, however, heard the accused call out and that had drawn her attention. In any event the Investigating Officer was clear that there was no boyfriend and that the accused had refused to reveal any name of a purported boyfriend. The only reasonable inference is that there was never any boyfriend which is why Zvipamhe heard nothing. The boyfriend was simply a figment of the accused’s imagination in his purported effort to weave a tale that would distance him from the murder of the deceased.

Then there is the story of the snake told to two of the state witnesses who gave evidence. The accused distanced himself from ever having told the story of a snake. He said he had never told any of them to avoid a particular route because of the snake. The issue therefore boils down to credibility of the witnesses. We found both Zvipamhe James and Dorothy Mukanda to be credible witnesses compared to the accused who merely denied every material fact that was mentioned by the witnesses. The accused’s evidence was also inconsistent with his warned and cautioned statement. In his statement he said he had remained at home only leaving at around 12 midday to look for his wife. In court he said he had left soon after his wife to go to his father’s place.

As regards Dorothy Mukanda, the accused’s counsel argued that her evidence was exaggerated particularly as she said she had seen the deceased’s footprints at the well. There was nothing unusual in trying to trace a missing person through footprints. Her stature was known. Her bucket was there. The fact that Dorothy linked the footsteps to the deceased did not make her an unbelievable witness.

There was no reason why Zvipamhe James would have wanted to lie against him. She was not related to him in any way. As for Dorothy who was related to the accused, it is material that her version of what the accused had said in relation to the snake corroborated that of Zvipamhe James. It also corroborated that of Matthew Kaundura who told the court that the accused at the time of the search had been giving directions. Materially the body was ultimately found at the very spot that the accused had wanted the witnesses to avoid. Our conclusion is that the story of the snake was concocted by the accused for the simple reason that he was afraid that the body would be discovered sooner rather than later. He had told the witnesses the story for the precise purpose of diverting the search away from the body. Our conclusion is that he told the story because he already knew she was dead and knew exactly where the body was to be found.

Then there is also the issue of the poison. An innocent explanation would be that he wanted to take poison perhaps because he was genuinely distraught at his missing wife yet denied ever wanting to take poison or indeed having told Zvipamhe that he wanted to do so. We believed Zvipamhe’s evidence for reasons for reasons of credibility which we have already alluded to that he did mention taking poison. The only plausible explanation is that he wanted to take poison because of his sense of guilt for what he had done.

Then we add to this analysis the evidence by Dorothy Mukanda that the accused wanted to leave to go to Pondorosa farm with the older child. Even though the accused denied that he ever wanted to go there, we have already called his credibility as a witness into question. We have no reason to disbelieve Dorothy’s account. The import of accepting her evidence on this score is that it was not even known at that time that the accused’s wife had died. It makes absolutely no sense for him to have wanted to up and leave before they had even done an earnest search for his wife. The conclusion in this regard can only be that he wanted to leave at that point because he knew that she was dead. His efforts at distancing himself from having said that are a mere effort to avoid facing the music. Add to this the fact that the accused tried malingering at the beginning of his trial, then a picture emerges of an accused who is determined at all costs not to face the consequence of his actions.

The evidence of the problematic marriage he had with his wife because of his suspicions of infidelity is crucial. Dorothy Mukanda was a family member. Family members talk. She would have been familiar with her nephew’s marital woes if not even more so than those who lived in the community. Even if it is argued that the evidence of Dorothy was hearsay as far as the state of their relationship was concerned, the reaction of his own mother-in- law lends credence to the assertion that theirs was an unhappy marriage. Upon being told that her daughter was missing, her reaction to the accused was that if he no longer wanted to live with her daughter, he should simply return her home. The accused himself in assaulting Farai accused her of influencing his wife into prostitution. The Investigating Officer also revealed that the accused and the deceased had had an argument that morning with the accused not wanting her to go to the well in light of prioritising his own needs and interests. She had defied him and paid the price with death. The evidence in totality on the state of their relationship does point to a troubled union.

On the nature of the murder, the evidence pointed to a planned murder. The Investigating Officer’s evidence and the doctor’s post mortem report told the story. The murder was with actual intent as the deceased was strangled. Strangulation is almost always conscious and deliberate. It is designed to extinguish the life of another human being.

The body, as the Investigating Officer revealed, which had bruises and marks had been deliberately dragged to the point where it was found. It was placed next to an ant hill perhaps in a bid to create an impression that she had been bitten by a snake, given that the accused went to great lengths to create the impression that he had seen a snake in that very spot. Crucially, the accused had left home soon after the deceased had gone to fetch water. This was an important piece of evidence unearthed in the investigation. He had not been at home the whole time. Add to this the fact that he had quarrelled with his wife because he did not want her to go to the well, then the reasonable inference is when he left home he followed her to the well. He was gone for 30-40 minutes. The timing was a critical window within which the murder was committed. Centrally therefore, there were events that occurred before the commission of the crime and they were events which occurred after the commission of the crime. It is when these are put together that an evidential picture has emerged which supports a criminal conviction of the accused for the murder of his wife.

Accordingly on the basis of the totality of the evidence we have pieced tougher we find the evidence points conclusively to the accused has having been the author of the deceased’s death.

Verdict

The accused is guilty of murder in terms of s 47 (1) (a) of the Criminal Code.

Mitigation /aggravation/ sentence

In mitigation it was argued that he is a first offender aged 25 with two young children and as such that he deserves a sentence that would give him another shot at life. His counsel suggested a sentence in the range of 15 years. The state, on other hand, emphasised the unnecessary loss of life and that the accused premeditated the murder. He had also deprived the children of their mother. A thirty year sentence was deemed adequate.

In arriving at an appropriate sentence for murder with actual intent, this court takes into account that the accused showed absolutely no remorse throughout the trial. He may indeed be a first offender but faced with a serious crime, only so much under the circumstances can be made of the fact that he is a first offender. His lack of remorse having killed his wife is troubling and shows a deep seated lack of respect for his victim. Whatever his deep seated grievances, her offence at least on that day appears to be that she had prioritised fetching water over his own need to be fed.

Having volunteered a great deal of information at the time of the murder which  when pieced together clearly pointed to the fact that he had murdered his wife, the accused simply took a stance that he was going to deny everything. He had also tried to fake mental illness. He is the author of his own misfortune.

The accused is sentenced to 35 years imprisonment for murder with actual intent.

National Prosecuting Authority, State’s legal practitioners

AD & David Legal Practitioners, accused’s legal practitioners (Pro Deo)