GOWORA
JA:
After
hearing counsel in this matter we dismissed the appeal against both
conviction and sentence. We indicated that our reasons would follow
in due course. These are they.
The
appellant was convicted of one count of murder and three counts of
assault as defined in section 47(1)(b) and section 89 respectively of
the Criminal Law Codification Act [Chapter 9:23].
He
was sentenced to 18 years imprisonment in respect of the murder
charge. The three counts of assault were treated as one for purposes
of sentence and he was accordingly sentenced to 3 years imprisonment
which was to run concurrently with the sentence on the murder
conviction.
The
appellant has noted an appeal against both convictions on all the
counts and the sentences.
The
events leading to the conviction of the appellant occurred on 23
September 2011. At the time he was a duly attested member of the
Zimbabwe Republic Police holding the rank of Chief Superintendent. He
was based at Chiadzwa Diamond Fields where he was the second in
command. The police had been deployed at the diamond fields to flush
out and arrest suspected illegal diamond panners.
On
the day in question the deceased, Tsorosai Kusena, his brother Onesai
Kusena, their cousin Pikirai Kusena and one John Gwite were arrested
in the diamond fields by security personnel employed by Mbada
Diamonds on suspicion of being illegal diamond panners. They were
handed over to the police and detained.
A
few hours later they escaped from custody and ran off in different
directions. They were pursued and captured.
The
appellant was one of the details involved in the pursuit.
Thereafter,
the deceased and his companions were returned to the base where the
appellant forced each of them to stand on the ground on their heads
with their feet in the air. He then proceeded to assault each of them
on the small of the back and the buttocks with a switch/baton stick.
The assault was sustained and lasted for a considerable period.
After
a while the deceased was no longer in a position to assume the
position and collapsed on to the ground. The appellant persisted with
the assault on all the victims. Despite his condition and obvious
difficulty, the deceased was not spared from this assault.
Sometime
in the evening, Mandizvidza, one of the junior officers took the
switch/baton stick from the appellant stopping the assault. He threw
the weapon into the fire.
After
the assault had been halted the deceased and the complainants were
placed in cells and the deceased was heard to complain that he had
been injured badly. He also expressed the fear that due to the
injuries sustained from the assault he would not last.
After
a short while he was seen to have died.
A
post-mortem report compiled by the pathologist confirmed that the
deceased had bruises all over the back. No other injuries were found.
The cause of death was recorded as traumatic shock as a result of
assault.
On
these facts the appellant was found guilty of murder with
constructive intent.
The
grounds of appeal are the following:
AD
CONVICTION
(i)
The court a quo erred in respect of all counts by failing to attach
sufficient weight to the discrepancies that were manifest in the
evidence of the State witnesses.
(ii)
The court a quo erred in respect of the count for murder in accepting
that the cause of death was assault when the doctor who testified
told the court that he did not do a full post-mortem (sic). No
examination was done to establish if death was not caused by
diarrhoea or vomiting which attacked the deceased prior to his death.
(iii)
The court a quo misdirected itself by finding the appellant guilty of
murder with constructive intent when the evidence before it did not
show that appellant foresaw that death would result from his conduct.
The court a quo must have made a finding that appellant ought to have
foreseen that death would ensue.
(iv)
The court a quo misdirected itself by rejecting appellant's
evidence that the complainants and some police officers connived to
incriminate him yet the complainants themselves told the court that
they were tipped off to escape from lawful custody by the police
officers who were guarding them.
(v)
The honourable court a quo erred by failing to warn itself of the
dangers of relying on the evidence of the State witnesses, the
majority of whom fell into either the category of suspect witnesses,
or outright biased witnesses with a discernible motive to falsely
incriminate the appellant.
AD
SENTENCE
(i)
A sentence of 18 years imprisonment in respect of the charge for
murder is too excessive in view of the circumstances of this matter.
(ii)
The court a quo misdirected itself by failing to treat the three
counts of assault as one for purposes of sentence.
As
to the first ground of appeal, it was contended on behalf of the
appellant that the court a quo erred in failing to attach sufficient
weight to the manifest discrepancies in the evidence of the witnesses
called by the State. It was argued that the evidence of the witnesses
regarding the number of sticks used to assault the deceased and the
complainants was full of contradictions.
We
were not persuaded by this submission.
Contrary
to the contention by the appellant, the court a quo found that the
witnesses all gave evidence that the appellant had used one stick in
the assault, which from the description could be a thick stick or a
baton. In its judgment, the court a quo commented that although quite
a number of the witnesses had spoken of the appellant having a number
of sticks in his possession, in their evidence the witnesses did not
suggest that the appellant had used more than one stick. The court
found that they had all maintained that he had assaulted the victims
with one stick.
Indeed,
this finding is borne out by the evidence of the witnesses.
Onesai
Kusena, the complainant in second Count gave evidence that the
appellant was holding five sticks. In describing the assault on him
he only mentioned one stick as being the assault weapon. He also
stated that Mandizvidza disarmed the appellant of the stick he had
been using. The appellant had then left with the remaining four
sticks.
The
complainant in Count 3, Pikirai Kusena gave evidence to the effect
that the appellant used a switch to assault all four of them
including the deceased.
John
Gwite was the complainant in the fourth Count. Like the other two
witnesses, the tenor of his evidence was to the effect that the
appellant had used one stick to assault all the victims.
Indeed,
the police witnesses also corroborated the evidence of the
complainants and confirmed that the appellant had used one stick to
assault the victims.
Constable
Senda Nkuli stated that the appellant had prepared three switches but
he saw him using one. Constable Bhobho confirmed that the appellant
had one stick which he took from the vehicle.
It
was suggested to him that some witnesses mentioned more than one
stick.
The
witness was adamant that he had only seen the appellant holding one
stick. This witness's evidence is consistent with that of Philleman
Manatsa and Edson Mandizvidza. In fact, the last witness disarmed the
appellant of the weapon and threw it into the fire.
In
my view, the court a quo cannot be faulted in the manner that it
considered the evidence of the witnesses on the weapon used to
assault the victims. The court was correct in its finding that
despite the mention by some witnesses of the appellant having several
sticks, the consistent story from all the witnesses was that only one
stick was used. All the witnesses stated that Mandizvidza threw the
weapon into the fire.
Like
the court below, I find no inconsistencies regarding the assault on
the four victims.
In
relation to the second ground of appeal, it was contended on behalf
of the appellant that the court a quo erred in concluding that the
deceased had died as a result of an assault when the doctor who
testified in court admitted that he had not conducted a full post
mortem examination.
The
post mortem report produced by the Dr Kasongo was admitted into
evidence by consent.
The
doctor gave evidence in support of the report and confirmed that the
deceased had died as a result of traumatic shock following an
assault. He observed bruises all over the body of the deceased. He
indicated that he had not been informed that the deceased had vomited
prior to his death. He had also not been informed that the deceased
had had a bout of diarrhoea on the night in question. His opinion was
that neither the vomiting nor the diarrhoea would have been the cause
of death in the case of the deceased. His evidence was that a person
would not die after suffering from a bout of diarrhoea for a day
unless the diarrhoea was due to cholera. He said that there was no
evidence of cholera in Mutare during the relevant period. His
evidence was to the effect that it was not necessary in every case to
conduct an internal examination for a post mortem unless the cause of
death is not obvious. It was his opinion that in the case of the
deceased it was obvious that he had been severely assaulted.
The
Investigating Officer, Musutani Chifumuna confirmed receipt of a
memorandum instructing him to investigate the death of the deceased.
According
to the memorandum, the deceased had fallen and hit against a rock as
a result of which he sustained injuries leading to his death.
According to the witness an initial examination of the body of the
deceased did not show nor confirm any injuries consistent with the
deceased having fallen as suggested in the memorandum. For instance,
there were no injuries to the head, forehead or neck, which injuries
one would expect to find in a victim alleged to have fallen as
suggested had happened to the deceased in the memorandum.
As
a result of the absence of injuries consistent with a fall he decided
to examine the body of the deceased. He removed the clothing of the
deceased and found the following injuries namely, bruising on both
knees, right shoulder, the region between the buttocks and the back.
He observed clotting just under the skin. There were also signs of
red and black marks which led the witness to conclude that there
might have been internal bleeding or that blood had clotted under the
skin. There were blisters on the soles of both feet. He caused
photographs to be taken of the injuries he had observed.
Initially
the death of the deceased was treated as a sudden death but after
further investigations it was decided to open a criminal
investigation against the appellant on a charge of murder.
The
court a quo was alive to the fact that there had not been an internal
examination of the deceased, and that the post mortem report was
based on an external examination. The court dealt with that aspect of
the evidence as follows:
“The
court wishes to take judicial notice of the fact that it is not
everybody that is taken for post mortem that a doctor seeks to open
in establishing a cause of death. Even if Doctor Kasongo is not a
pathologist he compiled a post mortem report. If the body had been
taken before pathologists where the cause of death is obvious the
issue of opening up for purposes of internal examination is not
relevant. Where the cause of death is obvious there really is no need
to open the body. It is only where the cause of death is hazy or in
circumstances where chemical situations are alluded to as a cause of
death that internal organs have to be opened up and examined. In this
case, the doctor had been given the history of assault which is
supported on the record and he then made his own professional
observations leading him to a conclusion as to a cause of death. The
other complainants were examined by different doctors who confirmed
that they had been assaulted. This tallied with the manner in which
Doctor Kasongo compiled the post mortem, as he also observed injuries
on the back and lower back on more or less the same area as the other
complainants confirming the area of assault.”
The
evidence of the assault perpetrated on the deceased is overwhelming.
It
is common cause that when the deceased was arrested he was in good
health. He was fit enough to escape from lawful custody together with
his companions. Members of the police which included the appellant
chased them for a considerable distance through the bush. When the
deceased was re-arrested he was able to walk, climb into the police
vehicle and disembark without being assisted. A few hours later he
lost his life after the sustained attack by the appellant.
The
conclusion by the doctor that the cause of death was obvious cannot
be impugned and the court a quo cannot be faulted in accepting the
conclusion by the doctor that the deceased died as a result of
traumatic shock due to the assault.
It
is contended on behalf of the appellant, that the court a quo
misdirected itself in making a finding that the appellant was guilty
of murder with constructive intent when the evidence before the court
did not establish that the appellant subjectively foresaw that death
would ensue from the assault of the deceased.
Section
47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23],
provides in relevant part:
“(1)
Any person who causes the death of another person -
(a)
intending to kill the other person; or
(b)
realizing that there is a real risk or possibility that his or her
conduct may cause death, and continues to engage in that conduct
despite the risk or possibility; shall be guilty of murder.”
In
S v Mugwanda 2002 (1) ZLR 574, at 581E-F, CHIDYAUSIKU CJ, in
describing the test to be applied in determining the question of
intent in a murder had this to say:
“On
the basis of the above authorities, it follows that for a trial court
to return a verdict of murder with actual intent it must be satisfied
beyond a reasonable doubt that:
(a)
either the accused desired to bring about the death of his victim and
succeeded in completing his purpose; or
(b)
while pursuing another objective foresees the death of his victim as
a substantially certain result of that activity and proceeds
regardless.
On
the other hand, a verdict of murder with constructive intent requires
the foreseeability to be possible (as opposed to being substantially
certain, making this a question of degree more than anything else).
In
the case of culpable homicide, the test is: he ought to, as a
reasonable man, have foreseen the death of the deceased.”
In
order to prove its case against the appellant, the State called six
witnesses to the assault, three of whom were complainants in the
assault charges. The other three were police details.
All
the witnesses gave graphic details of a horrific assault upon the
victims and especially the deceased. The victims were made to stand
on their heads. The appellant would then assault each in turn with a
switch whose diameter was estimated by one of the police details as
3cm or 4cm. This same witness stated that the appellant would direct
the assault at the end of the spine, just above the victims'
buttocks. He was using severe force. The witness assumed duty at
about 6pm. The appellant was already in the process of assaulting the
victims. The assault was stopped at about 7pm.
It
was only stopped due to the intervention of Mandizvidza, a junior
ranking officer to the appellant.
According
to the witness, after the appellant left the cells where the assault
victims were, the deceased was lying on the floor groaning. He was no
longer able to walk and had to be assisted to go outside in order to
relieve himself.
The
witness was emphatic that the deceased was not at the time suffering
from diarrhoea. However, he kept vomiting. At times he would heave,
without any vomit coming out.
The
witness was about to go off duty when he decided to wake up the
victims so that he could hand them over to his relief. He attempted
to wake up the deceased and realised that he had died.
It
was his evidence that all the victims had injuries on the back, knees
and bottom of the feet.
Mandizvidza,
the officer who disarmed the appellant described the switch/baton
stick as being between 50 and 70cm in length. He described its
diameter as 5cm. He told the court that the appellant had assaulted
the victims for a protracted period and was using severe force. The
deceased died shortly after he had stopped the assault.
In
the post mortem report, the pathologist recorded that he “found
bruises all over the body”.
There
is no direct evidence of the mens rea of the appellant in this case.
Therefore, it cannot be stated that it was the appellant's avowed
intent to kill the deceased. As such the appellant's intent can
only be inferred from the circumstances surrounding the offence.
The
appellant was a senior police officer at the time that the events
leading to the death of the deceased occurred. He was a Chief
Superintendent. At the time he appeared in court for the trial he had
been in the service of the police for twenty-six years. It is safe to
say that he had considerable experience as a police officer.
He
confirmed that as a police officer, he was aware through experience
of people who had died as a result of being assaulted. Yet, with full
knowledge of the consequences that an assault may lead to the death
of a victim he subjected the deceased to a sustained assault on the
spine.
The
evidence before the trial court was that after a time the deceased
was unable to keep his body in an upright position as demanded by the
appellant. He was no longer able to place his head on the ground and
was lying on his stomach, unable to block the blows. Still, the
appellant persisted with assault stopping only as a result of the
intervention of a junior officer.
The
post mortem report speaks to bruises all over the body and it was the
evidence of the doctor that an internal examination was not necessary
because the cause of death was obvious due to the external injuries
he observed.
After
the assault the deceased could not stand, walk or squat. He had to be
assisted in relieving himself.
From
the evidence of the State witnesses it is safe to infer that the
reason why the deceased could not stand was due to the fact that his
spine had been badly injured from the assault. The appellant ordered
his victims to assume a position from which he could inflict the most
severe damage to their bodies.
In
my view, the appellant must have, and in fact, did foresee the
possibility that the assault would result in the death of deceased.
The
court a quo cannot be faulted in its reasoning on intent.
The
further contention by the appellant was that the trial court
misdirected itself in rejecting the appellant's evidence that there
was connivance on the part of the witnesses to incriminate him of the
offences. It was suggested that proof of the connivance could be
gleaned from the evidence of the civilian witnesses that they had
been tipped off to escape from lawful custody by some of the police
witnesses.
The
complainants to the assault charges all gave evidence.
Their
evidence was consistent in so far as it dealt with the assault. The
only discrepancy in the evidence was whether the appellant had more
than one weapon. Despite this all of the witnesses including the
police witnesses stated that the appellant had only used one
switch/baton stick in the assault.
Apart
from the witnesses to the assault, the State called the investigating
officer to testify.
His
evidence was clear that the death of the deceased had been reported
as a sudden death arising from a fall. The memorandum prepared in
relation to the death of the deceased was false. The investigating
officer discounted the report and investigated the death as a
suspicious death.
The
cause of death was obvious.
The
appellant was the only person who was seen assaulting the victims and
there was no evidence placed before the court a quo of a conspiracy
by the witnesses.
The
complainants told the court that they had been warned by some of the
officers to escape because the appellant had a history of assaulting
suspects. This warning was confirmed in the actions that the
appellant thereafter took. He badly assaulted the suspects leading to
the death of one of those suspects.
I
find no misdirection.
As
for the contention that the witnesses were suspect witnesses and that
there was a risk that they would falsely implicate the appellant, I
find no substance in the contention.
There
is on record ample evidence of a vicious assault on the deceased and
the other three victims. The medical evidence is on the record. The
photographs produced in relation to the assault provide mute
testimony of the severity and brutality with which the assault was
perpetrated. They capture the horrific injuries sustained by the
complainants.
In
my view, the reports and photographs confirm in all respects, the
witnesses' evidence of the assaults on themselves on themselves as
well as the deceased. The doctors who examined the complainants and
compiled the medical reports were not known to the complainants or
the deceased.
The
appellant was not able to give a credible reason why the complainants
and his colleagues would conspire to lie against him and falsely
implicate him.
All
the evidence pointed at the appellant as the assailant.
The
fact that the three assault victims were suspected diamond panners
cannot detract from their evidence that they were assaulted.
The
appellant was not the only police officer engaged in the operation
that netted the illegal diamond panners. The charges against the
appellant are not related to the panning. The charges relate to the
assault on them. There is no suggestion from the appellant that
someone else assaulted them.
All
he says is that they were never assaulted.
Further
the fact that the other police details could have faced disciplinary
charges has no bearing on the cogency of their evidence. The
appellant was not the only senior officer at the base, he was the
second in command and the appellant has not substantiated his
allegation of conspiracy by the witnesses.
I
find no misdirection on the part of the court in convicting the
appellant of murder with constructive intent.
In
relation to the sentence, counsel for the appellant conceded that
there was no basis for attacking the sentence imposed. He accepted
that the court a quo imposed an appropriate sentence. The concession
was in my view proper in the circumstances. Both grounds of appeal
against sentence were not well taken.
The
first, that the court a quo misdirected itself by not suspending a
portion of the sentence of eighteen years imprisonment on the murder
conviction cannot be sustained for the simple reason that the law
does not permit the suspension of any portion of such sentence.
Section
358(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]
provides in relevant part:
“(2)
When a person is convicted by any court of any offence other than an
offence specified in the Eighth Schedule, it may —
(a)
postpone for a period not exceeding five years the passing of
sentence and release the offender on such conditions as the court may
specify in the order; or…,.”
In
turn, the Eighth Schedule reads as follows:
“EIGHTH
SCHEDULE (Section 358) OFFENCES IN RELATION TO WHICH POSTPONEMENT OR
SUSPENSION OF SENTENCE, OR DISCHARGE WITH CAUTION OR REPRIMAND, IS
NOT PERMITTED
1.
Murder, other than the murder by a woman of her newly born child.
2.
Any conspiracy or incitement to cThe approach of the court cannot
therefore be faulted in any way.ommit murder.
3.
Any offence in respect of which any enactment imposes a minimum
sentence and any conspiracy, incitement or attempt to commit any such
offence.”
Whilst
the court a quo had a discretion in the duration of the sentence of
imprisonment that it could impose, it had no power to suspend any
portion of such sentence.
Turning
to the sentence imposed in respect of the three counts of assault
that the appellant stands convicted of it is common cause that the
court took all three counts as one for purposes of sentence. It also
ordered that the sentence of three years should run concurrently with
the sentence in respect of the murder conviction.
It
was for the above reasons that we dismissed the appeal in its
entirety.
ZIYAMBI
JA: I agree
HLATSHWAYO
JA: I agree
Karuwa
& Associates, applicant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
