What you need to know:
- The postmortem examination established that the deceased had died due to an acute heart failure and a witness had seen Nyangasi strangling his wife and the witness had found the deceased breathless following the incident.
In a murder trial, one of the cardinal issues that court decides upon, is the intention to cause death; that is whether or not the death of the deceased was caused with malice aforethought. And so, when Appollo Nyangasi was tried for the murder of his wife Christine Nyangasi Dambio, court had to decide when he actually planned or intended to kill his wife.
The postmortem examination established that the deceased had died due to an acute heart failure and a witness had seen Nyangasi strangling his wife and the witness had found the deceased breathless following the incident.
Death, in this case, was attributed to neurogenic cardiac failure that resulted from pressure applied to the neck. Court, therefore, ruled that the death of Christine was unlawful.
Intention to cause death
Malice aforethought is deduced if it can be proved that there was an intention to cause death or that the accused person was aware that the act or omission he or she occasioned would probably cause death.
Courts have, time and again, stated that the intention to cause death is not altogether an easy thing to establish or pinpoint because it is hard to tell what goes on in a person’s mind especially where his or her intention has not been expressed in any form. It is sometimes even more difficult to determine whether the person accused of murder was aware if his or her action would probably cause death. In this particular case the questions were if Nyangasi had the intention to kill his wife when he followed her to the toilet and held her by the neck and whether he actually knew that forcefully holding his wife by the neck would have led to her death.
Case law has provided a few guidelines to make a reasonable inference on this point.
In cases where a deadly weapon such as a gun, a spear, a knife, a machette, a big stick or an iron bar is applied against a vulnerable part of the victim’s body, courts have been quick to infer the requisite intention or knowledge. The vulnerable parts of the body include the head, the neck, the chest or abdomen. Another area the courts have relied upon to infer the intention or knowledge to cause death is the behaviour of the accused person before, at the time of, or after the offence.
Fiona Aguram, a niece to Christine Nyangasi told court that she slept with her aunt, the deceased, on the night before her death. On July 24, 2010, in the morning she heard a loud bang on the metallic door of the house they slept in and she also heard Nyangasi cursing, shouting and hurling insults at his wife.
Nyangasi’s conduct forced them to open the door. Nyangasi is said to have told his wife that she would be dead by midday.
According to the evidence of Aguram, Christine moved to ease herself in the toilet which was outside the house but Nyangasi followed her to the toilet.
However, shortly afterwards, she heard Christine scream from the toilet and this forced her to rush to the toilet where she saw Christine lying down on the floor and Nyangasi had his hands around her neck, strangling her and Christine struggling to free herself. This evidence was corroborated by that of Brenda Namugo, another niece to the deceased, who testified that she saw Nyangasi follow his wife to the toilet, heard the loud scream and saw Nyangasi rush out from the toilet.
The lawyers representing Nyangasi, however, told court that the narration by Aguram and Namugo were not reflected in their police statements recorded shortly after the death of Christine; to the lawyers what these witnesses told court were afterthoughts and deliberate attempts to lie to court.
The law governing inconsistencies or discrepancies is to the effect that grave inconsistencies, if not satisfactorily explained, will result in the evidence of the witness being rejected. Minor inconsistencies will not usually have that effect unless they point to deliberate untruthfulness.
A contradiction is minor if it does not go to the root of the case, and where the witness never intended to tell deliberate lies. It is open to court to find that a witness has been substantially truthful even when he or she may have lied in some particular respect. The veracity of a witness must be assessed on his or her evidence as a whole. If he or she has been found to be untruthful in one part of his or her evidence, then in the absence of a reasonable explanation, the remainder of that evidence should only be accepted with the greatest caution.
State of confusion
A look at the statement made at the police by Namugo and the narrative in court clearly showed that some of the information given in court was not contained in the police statements. Namugo told court that she made the statement to the police at about mid-day on the day the incident took place; that she was in a state of confusion and never realised what the police captured or did not capture. Court was not availed the statement made by Anguram and was not therefore in a position to comment on the issue raised.
In a previous case, a judge considered the discrepancy between a police statement and the testimony in court and ruled that the witness statement in court is what court will accept as the lawyers for the accused person have the opportunity to cross-examine the witness. The statement to the police is neither stated on oath nor is the witness cross-examined on it.
In light of the explanation offered by the witness on the circumstances under which the statements were recorded, court was satisfied that chances were high that the witnesses may have been in a state of confusion then. Court was also satisfied that Anguram and Namugo were truthful in their testimony.