MUSAKWA
J:
The
accused pleaded not guilty to contravening section 47 of the Criminal
Law (Codification and Reform) Act [Chapter
9:23].
It is alleged that on 26 February 2008 and at number 3711 Old
Highfield, Harare, the accused unlawfully and with intent to kill
assaulted Memory Paliza by striking him with a knobkerrie all over
his body thereby causing injuries from which the deceased died.
It
is not very clear why it took six years to prosecute such a
straightforward case.
In
his defence outline the accused states that on the day in question,
the deceased who was of unsound mind shattered some window panes.
When the accused attempted to talk to the deceased, the latter tried
to attack him. The two had a scuffle and the deceased fell against
the wooden arm rest of a couch. The accused never intended to use the
knobkerrie he was holding. Thus he denies intending to kill the
deceased or realising the real risk or possibility of causing death.
The deceased was violent and the accused meant to discipline him and
to protect himself against attack.
It
is common cause that the deceased was the accused's nephew and the
two resided together with other relatives. The deceased was on
medication for a mental disorder. He had defaulted in taking
medication which rendered him belligerent.
The
State led the bulk of its evidence by way of admissions of the
witnesses' testimony as summarised in the summary of State case.
The post-mortem report on the deceased was produced. The report noted
bruises on the right shoulder, thigh, leg and left shoulder. There
was scalp haematoma of the right parietal as well as left
pneumothorax due to collapsed lung which was perforated by fractured
ribs. The fourth to sixth ribs were fractured on the anterior and
posterior walls. The cause of death was noted as pneumothorax and
multiple rib fractures arising from assault.
The
accused's warned and cautioned statement was also produced. It (In
its poorly translated version) reads as follows:
“I
do not admit the charge. It is true that I assaulted the deceased
with a knobkerrie but I wanted to discipline him as my nephew since
he had a tendency of breaking window panes. I had no intention of
killing him, and furthermore the deceased was of mental health (sic)
so he liked violence. I wanted to defend myself. I assaulted him at
the nineth (sic) hour and the following morning he requested for some
water to drink and was given by my mother. He did not die soon after
the assault. He should have died of other causes not assaults. The
deceased was my nephew whom I loved and I looked after him since he
was young. So I do (sic) like him to die in such a way.”
Laison
Paliza the accused's younger brother was the only State witness to
give viva voce evidence. He stated that following the shattering of
two window panes by the deceased the accused came home and resolved
to discipline the deceased. He told everyone to leave the dining
room. This was around 8pm. He had seen the accused holding a broom
stick.
From
his room he could hear sounds of blows striking and the deceased's
panting. The deceased also stated he would break more panes. He
estimated the assault to have lasted for about twenty five minutes.
Considering
the accused's admission to the use of a knobkerrie, Laison withheld
evidence on this aspect. The evidence attributed to him in the
summary of State case is to the effect that the accused used a
knobkerrie. This was a material discrepancy which State counsel
should have addressed with the witness.
Laison
further testified that the following morning another nephew woke him
up. When he went into the passage he saw the deceased lying on his
back. The deceased was not stirring although the body was still warm.
Attempts to resuscitate him proved futile.
The
witness further explained that on the day of the assault, when the
accused arrived home the deceased was seated in the lounge. Asked if
the deceased had attacked the accused (per defence outline) he
obviously speculated that it might have been so as the deceased was
of a violent disposition on account of not taking medication. On the
following day he said he saw a smaller piece of the broke broom
stick.
Another
remarkable aspect of this witness is that when the deceased was being
assaulted he retired to bed. In fact he made reference to taking some
medication. He did not seek to intervene as he thought the deceased
was merely being disciplined.
The
accused's evidence in-chief was quite brief. He stated that the
deceased was in the habit of breaking window panes. He resolved to
discipline him. Hence the use of a broom stick. He called the
deceased to the dining room and he complied. He demanded to know why
the deceased was behaving in a defiant manner. The deceased got up
and advanced towards the accused. The accused picked up the broom
stick and started to assault the deceased. He justified his action as
being motivated by trying to deter the deceased from being violent.
He did not foresee the fatal consequences. The deceased normally paid
heed to what he said.
Under
cross-examination he confirmed that he ordered everyone from the
room. As to how he intended to discipline the deceased he stated that
by assaulting him with the stick. He also stated that he did not know
that the deceased had defaulted in taking his medication. Asked if
the deceased attacked him he answered in the negative. He was then
asked why he claimed the deceased was about to attack him and he
replied that it was the manner in which he got up. They then grappled
and fell down, with the deceased hitting against the arm rest of the
sofa with his chest. He admitted that the fall was accidental. He
also admitted that he desisted from assaulting the deceased after
about twenty five minutes. This, he said was after the intervention
of his mother.
In
his address Mr Nyazamba
quite correctly submitted that the requirements of defence of person
as provided in section 253 of the Code were not met. He further
submitted that even if it were accepted that the accused was under
attack, the means he used were unreasonable. He also submitted that
the accused was aware of the risk of using a stick on the deceased.
In such a case there was an element of recklessness.
Having
initially reasoned so well Mr Nyazamba
then somersaulted in his next submission. He concluded that the
accused should be convicted of culpable homicide. He based this
submission on the accused's belief that he was disciplining the
deceased. Mr Nyazamba
also attacked his own case by submitting that there was no internal
examination of the deceased's skull. The submission here is that it
ought to have been established whether the deceased would have
survived had he received medical attention. This, in my view is a
superfluous submission as Mr
Nyazamba
had earlier on submitted that there was no break in the chain of
causation as he made reference to section 11 of the Code.
In
his address, Mr
Katehwe
for the defence made common cause with Mr Nyazamba's
submissions regarding a verdict of culpable homicide. He submitted
that there is a fine line between a deliberate killing and death
resulting from a realisation of real risk or possibility. He thus
submitted that whilst the accused might not have subjectively
foreseen death, a reasonable person would have foreseen the
possibility of causing death.
There
is no doubt that the accused's conduct caused death. He used a
weapon and inflicted injuries which resulted in the deceased's
death. It is immaterial and does not arise that the deceased could
have survived if he had received medical attention. In any event, it
is the accused himself who should have ensured that the deceased
received medical attention.
The
accused person was not under attack. He formulated a decision to
assault the deceased and he used a weapon. This was not justified in
the circumstances. He then called the deceased into the room where
the assault took place. He firstly cleared the room of other people.
That he assaulted the deceased because the latter made as if he
wanted to attack him is not supported by his own admission and even
by the somewhat hesitant testimony of Laison. Therefore, it is safe
to reject self-defence.
In
his testimony the accused claimed to have used a broom stick.
Nonetheless his defence outline and the confirmed warned and
cautioned statement refer to a knobkerrie. The two instruments cannot
be mistaken for each other. Even if it were to be generously accepted
that there was wrong interpretation from the vernacular in the warned
and cautioned statement, the same cannot be said of the use of the
same term in the defence outline. Suffice it to note that there was
no satisfactory explanation why the accused mentioned knobkerrie in
the two documents. Therefore, we hold that the accused used a
knobkerrie as opposed to a broom stick. Even the injuries are likely
to have been inflicted by a knobkerrie, especially the rib fractures.
We
cannot conclude that the accused's avowed intention was to cause
death. He set out to punish the deceased for breaking a mere two
window panes. In doing so, he chose to use a weapon.
The
test for realisation of real risk or possibility is subjective and is
provided in section 15 of the Code. It has two components, namely-
(a)
Awareness that there is a risk or possibility that the conduct
embarked on might result in the relevant consequence and the relevant
fact or circumstance existed when the accused engaged in the conduct.
(b)
Recklessness. This entails that despite the real risk or possibility
the person whose conduct is complained of continued to engage in such
conduct.
In
terms of section 15(2) of the Code, recklessness is implicit in the
term realisation of risk or possibility. Where awareness of real risk
or possibility is proved, recklessness shall be inferred from the
fact that the relevant fact or circumstance actually existed when the
accused engaged in the conduct.
To
deliberately embark on an assault of another person entails an
awareness of the real risk or possibility of injury.
In
the present case the assault lasted for close to half an hour. The
accused only desisted after the intervention of his mother. It is
inevitable to infer that because grievous bodily harm ensued, the
accused must have realised the real risk or possibility of fatal
consequences of his conduct. This is evidenced by the three ribs that
got fractured and perforated the lungs. It is immaterial that the
head injury was not fully explored. There is no doubt as to what
caused death.
Accordingly,
the accused is found guilty of contravening s 47 (1) (b) of the Code.
Regarding
the punishment for murder, section 48 (2) of the Constitution
provides that-
“A
law may permit the death penalty to be imposed only on a person
convicted of murder committed in aggravating circumstances, and —
(a)
the law must permit the court a discretion whether or not to impose
the penalty;
(b)
the penalty may be carried out only in accordance with a final
judgment of a competent court;
(c)
the penalty must not be imposed on a person —
(i)
who was less than twenty-one years old when the offence was
committed; or
(ii)
who is more than seventy years old;
(d)
the penalty must not be imposed or carried out on a woman; and
(e)
the person sentenced must have a right to seek pardon or commutation
of the penalty from the President.”
It
is evident that there is no provision in the Constitution or any
other statute where the term aggravating circumstances is defined.
Counsel for the defence, in his written submissions points out that
the omission of reference to extenuating circumstances and the
introduction of the term aggravating circumstances should be
interpreted to mean that there must be introduced an enactment that
defines that term.
Both
Mr Katehwe
and Mr Nyazamba
cited Hungwe J's decision in S
v
Mutsinze
HH645-14 in which the learned judge interpreted section 48 of the
Constitution. The learned judge concluded that there is no law in
place which defines aggravating circumstances. He went further to
remark that the effect of section 48 of the Constitution is to give
courts unfettered discretion on sentence, which was not the case in
respect of section 337 of the Criminal Procedure and Evidence Act
[Chapter
9:07].
Hungwe J went further to remark that the introduction of the term
aggravating circumstances means that a law must be enacted which
defines that term.
Section
337 of the Criminal Procedure and Evidence Act provides that-
“Subject
to section three
hundred and thirty-eight,
the High Court —
(a)
shall pass sentence of death upon an offender convicted by it of
murder:
Provided
that, if the High Court is of the opinion that there are extenuating
circumstances or if the offender is a woman convicted of the murder
of her newly-born child, the court may impose ?
(a)
a sentence of imprisonment for life; or
(b)
any sentence other than the death sentence or imprisonment for life,
if the court considers such a sentence appropriate in all the
circumstances of the case”.
It
is well established that prior to the coming into effect of the
present Constitution, the death penalty was mandatory where a person
was convicted of murder unless the court found extenuating
circumstances. Section 338 of the Criminal Procedure and Evidence Act
excludes the death penalty for the following-
(a)
a pregnant woman; or
(b)
a person who is over the age of seventy years; or
(c)
a person who, at the time of the offence, was under the age of
eighteen years.
In
light of section 48 of the Constitution, it is imperative that
section 338 of the Criminal Procedure and Evidence Act be aligned
with the Supreme law.
Although
extenuating circumstances was not defined, the term basically relates
to circumstances or factors surrounding the commission of the offence
that lessen the moral blameworthiness of the convicted person. In
arriving at such finding a court weighed the mitigating factors
against aggravating factors. See for example the cases of S
v
Jacob
1981 ZLR 1 (AD) and S
v
Phineas
1973 (3) SA 897 (RAD).
A
constitutional provision must be accorded a generous and purposive
interpretation. As was stated in Smythe
v
Ushewokunze
and Another
(1998 93) SA 1125 (ZS) at 1134-
“In
arriving at the proper meaning and content of the right guaranteed by
s18(2), it must not be overlooked that it is a right designed to
secure a protection, and that the
endeavour
of the
Court
should always be to expand the reach of a fundamental right rather
than to attenuate its meaning and content. What is to be accorded is
a generous and purposive interpretation with an eye to the spirit as
well as to the letter of the provision; one that takes full account
of changing conditions, social norms and values, so that the
provision remains flexible enough to keep pace with and meet the
newly emerging problems and challenges.”
The
law referred to in section 48 of the Constitution which provides for
the passing of the death penalty already exists. The framers of the
present Constitution could not have been oblivious of that fact. The
only snag is the absence of what constitutes aggravating
circumstances. That notwithstanding, the common law which is also
part of our law provides for what constitutes aggravating
circumstances in the commission of a crime as a plethora of decisions
of the superior courts demonstrate.
Notwithstanding
the absence of a definition of aggravating circumstances it is
possible, from the particular facts of a case, to make a finding of
what constitutes aggravating circumstances. Within a legal context
aggravating circumstances are ordinarily understood to be those
circumstances that reduce an accused person's moral
blameworthiness. See S
v
Jacob
1981 ZLR 1.
There
are some crimes within our jurisdiction which provide for minimum
mandatory sentences unless a court finds that special circumstances
or reasons exist for non-imposition of such mandatory sentences. The
particular statutes do not define special circumstances or reasons.
Nonetheless courts have not been hamstrung in determining what
constitutes special circumstances or reasons. This is because they
have had recourse to the common law.
Examples
that immediately come to mind are -
(a)
Stock theft in contravention of section 114(2) as read with
subsection (3) of the Criminal Law (Codification and Reform) Act.
(b)
Unlawful dealing in or possession of precious stones in contravention
of s 3(1) of the Precious Stones Trade Act [Chapter
21: 06].
In
so considering we note the following factors. The accused was
provoked by the deceased's conduct. Hence, when he assaulted the
deceased, he was seeking to punish him for his violent conduct of
breaking two window panes. In the process he used a knobkerrie which
broke the deceased's ribs. The assault lasted for close to half an
hour, as we have already found. The nature of the assault in the
present case cannot, in my view constitute aggravating circumstances
as to warrant the imposition of the death penalty. In addition, there
was no premeditation, which is why we found him guilty of
contravening section 47(1)(b) of the Code.
We
therefore make a finding that there are no aggravating circumstances.
Tadiwa
& Associates,
pro
deo
legal practitioners for accused
