Murder suspect Misozi Chanthunya returns to the High Court in Zomba where Judge Ruth Chinangwa will determine whether he has a case to answer in the murder of his girlfriend Linda Gasa in 2009.
The court’s verdict will come amidst a legal challenge being mounted by Chanthunya on the grounds that the police investigations were highly compromised; hence illegal.
Chanthunya, through his lawyer Michael Goba Chipeta, argue that police violated standing procedures in the course of their investigations and that they illegally submitted fraudulent evidence in the trial.
Judge Chinangwa initially threw out the Chanthunya’s challenge on the grounds that it did not relate to the interpretation or application of provisions of the Constitution, a judgement which Chanthunya is appealing in the Supreme Court of Appeal.
On Monday, Judge Chinangwa will deliver a judgement on whether Chanthunya has a case to answer for Gasa’s murder. Chanthunya has continuously pled not guilty to the charge.
In presenting their case before the court two weeks ago, the State prosecution team submission led by Chief State Advocate Dr Steven Kayuni and Senior State advocate Pirirani Masanjala, stated that the evidence proves the essential element of the offence.
The State contended that the evidence adduced by the prosecution has made out a case against the accused sufficiently to require him to make a defence in respect of the office charged.
“We submit that this honourable court should rule that there is a case for the accused person to answer and the court should then proceed to require him to enter defence.
“It is a humble player of the state to the honourable court that it rules that Misozi Chanthunya has a case to answer and require him to offer an explanation on the death of Linda Gasa who was exhumed in his cottage house by requiring him to entre his defence,” reads the submission.
The state paraded 11 witnesses that included Jessie Kachale—Gasa’s sister in marriage—who claimed to have been told by the deceased that she was pregnant and that the suspect wanted her to terminate the pregnancy, being the motive for the murder.
The prosecution paraded several witnesses, including the workers at Mwala Cottage, police officials, pathologist Charles Dzamalala, Immigration officials and Airtel officials who tendered in their testimonies detailing different activities that took place from the day Gasa disappeared to the day she was found entombed under the cottage’s bathtub in Monkey bay.
But Chanthunya is challenging the legality of the method the police used to obtain the evidence, how the case commenced.
Goba Chipeta argued in the final submission submitted on February 17 2020—that there was no direct evidence proving the offence of murder against the accused and that there was no circumstantial evidence proving the offence of murder against the accused.
“The purported evidence regarding the search of Mwala cottage, the exhumation of the body, the identification of the body, the post-mortem examination of the body and the search and obtaining of the purported call logs was illegal and inadmissible, there having been violation of constitutional provisions,” reads part of the submission.
Goba Chipeta farther argued that the adduced evidence does not raise a prima facie case on which a reasonable tribunal might convict and that there has been no evidence to prove the essential elements of the alleged offence and the evidence adduced by the prosecution is so manifestly unreliable that no tribunal could safely convict on it.
“It is trite law under Section 254 (1) of the Criminal Procedure & Evidence Code, that if, upon taking all the evidence the court is of opinion that no case is made out against the accused sufficiently to require him to make a defence, the court shall deliver a judgment acquitting the accused.
“It is submitted that this is a proper case, for the reasons given, for the court to acquit the accused person. Wherefore it is humbly prayed to this Honorable Court for an Order acquitting the accused person.”
On evidence, Chipeta argued that no evidence was given to show that police complied with the law in relation to the search warrant used to search Mwala Cottage, that the said warrant was not tendered in Court for examination and that no application used in obtaining the search warrant.
“In the same vein, no evidence has been given to show that sections 113 and 113A were complied with by the police in relation to the search warrant used to obtain the call logs. The said warrant was not tendered in Court for examination,” reads the submission.
He also questioned the discrepancies in the call log which showed that all calls were made at the same minute in different hours and that phone International Mobile Equipment Identity (IMEI) kept on changing in some instances claiming that the call log was frequently obtained and that it was doctored.
“The arrangement and creation of fake and doctored call logs, made with the sole purpose of being tendered in Court in order to link the accused with the crime at issue, have him prosecuted and probably convicted, strongly suggest that individuals, other than the accused person himself, most likely committed the crime.
“There is no any other way through which the arrangement of the said documents to find their way into these proceedings can be explained,” Chipeta argued.
Airtel Liaison Officer Jacqueline Phiri told the court that the samples of the calls on the log were examined indicated that Chanthunya and Gasa were in Monkey Bay but she said could not know whether the tendered call logs are fraudulent and doctored documents.
Pathologist Charles Dzamalala told the court that, from his analysis, the cause of death was asphyxia, poisoning and stab wounds: poisoning first then smothering and that there were indication to show that the deceased may have been pregnant at some point prior to her death.
“There was no evidence to show how the pregnancy she had prior to death was lost,” he told the court.
Chanthunya was arrested in South Africa by Interpol on January 12, 2012 and was brought back into the country on March 27 2018.
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