KAMOCHA J: After
hearing submissions from both counsels we dismissed the appeal in its entirety although
the state counsel had held the view that the conviction was unsafe. We did not agree with him and indicated that
our reasons would follow. These are
they.
The appellant who is a sergeant
major in the Zimbabwe Republic Police at Plumtree Police Station was charged
with contravening section 89 (1)(a) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23]. In that on
23 March 2007 at the Plumtree Police Station the appellant, with intent to
cause bodily harm or realizing that there was a possibility or real risk that
bodily harm may result, assaulted Thobekile Gumbo by striking her with a fist
on her left ear. He pleaded not guilty
when arraigned but was found guilty despite his protestations.
He was then sentenced to undergo 15
months imprisonment of which 3 months imprisonment was suspended for 5 years on
the customary conditions of future good behaviour.
Aggrieved by both conviction and sentence the appellant
launched this appeal challenging their propriety on the basis that the state
had not proved beyond reasonable doubt that he had the requisite mens rea to assault the
complainant. This was based on the fact
that the assault was not witnessed by anybody not even Inspector Charles
Bendembe who had been standing about 20 metres away.
The appellant further complained that it was not clear from
the evidence what caused the injury to the complainant's ear. Was it caused by a blow with a fist as
alleged by the complainant or the butt of the rifle when the appellant was
disarming her as she wielded it?
He also complained that since he was unrepresented he should
have been advised of the need to call the doctor who examined the complainant
to give viva voce evidence showing
whether or not the injury was caused by a fist or the barrel or butt of the
rifle.
It was appellant's contention that the court a quo had failed to appreciate that
since the other state witness was close to the scuffle, if any injuries
occurred or assault occurred, it was clearly accidental.
The appellant went on to allege that the trial court was
biased in its reasons for judgment because it preferred the version of the
complainant to that of his. This
suggestion is clearly untenable. The
fact that the court rejected the appellant's story does not mean that it was
biased. The assertion is baseless. This ground of appeal is therefore disposed
of at this stage.
On conviction appellant finally complained that all facts and
evidence, taken together did not justify a conviction of an unrepresented
accused as there was no proof beyond a reasonable doubt.
As against sentence the appellant complained that it induced
a sense of shock in him. This assertion
was based on the fact that it was a direct term of imprisonment without the
option of paying a fine or community service.
Appellant complained that since he was a first offender he
should have been kept out of prison.
Only a single blow with a fist was delivered and yet the court treated
the matter as if there had been pre-meditation and as if it was a wanton attack
on the complainant.
He went on to complain about the fact that the trial court
took into account that the appellant assaulted a woman and submitted that the
complainant had been wrong in the first place to argue with and struggle with
the appellant who was her sergeant major in charge of discipline.
He claimed that the court ignored his character, age, and
social status, that he was ascending in the administrative ladder within the
police force, has a family to look after and that jobs were hard to come by.
His penultimate complaint on this head was that the court did
not give any cogent reasons for dismissing the other forms of punishment. He then concluded by alleging that all the
mitigatory factors in his favour had not been considered at all or objectively,
otherwise a non-custodial sentence ought to have been imposed.
The state evidence was opened by way of documentary evidence
in the form of a medical report compiled by a doctor at Plumtree District
Hospital on the day the assault was allegedly committed. Upon examining the complainant the doctor
observed that she had a painful left ear, with loss of hearing and damage to
the ear drum. He formed the opinion that
a blunt object was used with severe force to inflict the injury. His view was that the injuries were serious
as the complainant was likely to suffer permanent disability in that there was
going to be loss of hearing in the left ear.
The medical report had been served on the appellant who had
no objection to its production as evidence.
The need to call the doctor to give viva
voce evidence did not arise. Since
there were no external injuries or bruises around the ear there was no way the
doctor would have ascertained whether the injury was caused using a butt or barrel
of the rifle or a clenched fist. All he
was able to establish was that a blunt object was applied with severe force to
inflict the injury.
I pause here to observe that if the appellant had been trying
to disarm the complainant of the rifle and accidentally came into contact with
the complainant's ear he would not have used severe force resulting in serious
injuries being inflicted.
The complainant's evidence was that on the day in question
the appellant phoned her asking her to report for duty. She, however, informed him that Inspector
Muchineuta had told her that she would be off duty. The appellant did not accept that and
insisted that she should report for work.
She ended up going to another inspector called Tshuma and explained her
predicament. Tshuma suggested that she
should phone the appellant telling him that she was not supposed to be on
duty. Instead she gave Inspector Tshuma
her mobile phone who then spoke to the appellant. After the conversation, Inspector Tshuma told
her to go to her house.
The appellant did not accept what Inspector Tshuma had told
him instead he sent one Constable Nhamo to go and tell her to report for
duty. She put on her uniform and
proceeded to work. On arrival she went
to see Chief Inspector Mlilo – the officer-in-charge and explained to him that
she had been ordered to report for duty when she was not supposed to. The officer-in-charge told her to go and call
the appellant. The two went before the
officer-in-charge in his office where it was explained to the complainant that
she had to be on duty due to a shortage of manpower. They then left the officer-in-charge's
office. Complainant went out first while
appellant followed.
From there they went to the charge office where appellant
instructed Constable Kotyoka to give complainant a rifle. The rifle had a loaded magazine. She went out to check whether or not there
was a bullet in the chamber of the rifle.
But before she could clear the rifle she was called back and instructed
to go and call out for the lowering of the national flag which she did. The appellant did not like the way she called
out for the lowering of the national flag and told her that he was not
satisfied with the way she did it and further instructed her to go outside the
gate and call out again. She
obliged. After the flags had been
lowered she called out time for people to start moving as usual.
Thereafter the appellant called her to go to where he
was. Before going to where appellant was
she decided to remove a chair from under a tree where it had been placed. Her reason for doing so was that she did not
want it to be defiled by birds' droppings over night. Unluckily for her the chair fell over
exacerbating a bad situation. The
appellant there and then accused her of abusing state property as she walked
towards him. He allegedly started
shouting at her and said if she had wanted to show off he would do something
bad to her.
Fearing that there could be an accidental discharge from the
rifle she was carrying, she cleared it before getting to where the appellant
was. Thereafter she went and stood next
to him face to face to listen to a barrage of critisms to which she did not
respond except to say “Sir”. He then
instructed her to go and perform her duties at the gate.
She then turned round intending to go to the gate. While she had her back towards the appellant
she felt a blow landing on her left ear and while the appellant was still
behind her he grabbed hold of her by her neck and took the rifle from her. She started crying as he let her free. Appellant called Constable Kotyoka from the
CIO but Inspector Bendembe was the first to be at the scene and told the
complainant to get into the charge office which she did and then reported the
assault.
Thereafter she went to hospital for medical examination and
treatment. The doctor who examined her
compiled the medical report whose contents I have already detailed supra.
In as far as the actual assault was concerned the complainant
reiterated that she had cleared the chamber of the rifle and she had it in her
right hand facing upwards not downwards.
The appellant struck her on left ear while he was behind her. He was in no danger from the complainant
since she had cleared the chamber of the rifle and had her back towards him as
she was about to walk away to go to the gate.
She did not know what appellant used to strike her with. She was certain that she could not have been
struck with any part of the rifle because she had it in her right hand facing
upwards. She did not retaliate. She said she would not have been a match to a
man of the size and stature of the appellant.
She had never suffered from loss of hearing in her left ear before the
alleged assault.
According to her the appellant was a sergeant major at
Plumtree Police Station in charge of disciplining junior officers. The discipline was, at times, enforced by
pouring water on errant junior officers, making them dig pits while others are
just made to roll on the ground.
Her reason for wanting to know why she was being called to report
for duty on that particular day was that she had been attached to the Victim
Friendly Unit and would be on duty the following day. Inspector Muchineuta, who was senior to
appellant, had told her that she was off duty on that particular day. Another senior officer Inspector Tshuma went
further and told the appellant that the complainant was indeed not supposed to
be on duty on that day but would be on duty the following day. Inspector Tshuma even phoned the appellant
telling him that much. He even,
thereafter, told her to go to her house.
I pause here to observe that the complainant's inquiries did
not go down well with the appellant.
That explains why he sent Constable Nhamo to summon the complainant
irrespective of what Inspector Tshuma had told him over the phone. Worse still, when the complainant arrived at
the office she went to see the officer-in-charge Chief Inspector Mlilo who
summoned the appellant to his office.
The appellant was infuriated by all this and tried to find
fault with complainant even where there was none. He accused her of not calling out the time
for lowering the national flag properly and ordered her to do it again. Yet, Inspector Charles Bendembe said she had
done so in a proper manner. Appellant
did not end there, he went further and accused her of abusing state property
when the chair she was removing from under a tree fell over. Again Inspector Charles Bendembe told the
court a quo that the falling of the
chair was not a deliberate act but just a mistake.
Under cross-examination the appellant asked the complainant
why she did not comply when he telephoned her and told her to report for
duty. Her reply was that it was because
she had been told that she would be off duty on that particular day by an
inspector – (a senior to the appellant).
When he put it to her that she was struck with a rifle she retorted that
the rifle was in her right hand. It
would, therefore would have hit her on the right ear. Moreover, the appellant first struck her on
the left ear before he grabbed hold of the rifle. Finally under cross-examination the appellant
wanted to know if there was any need for him to assault the complainant where
upon she said she was surprised by his statement that he had intended to “sort
her out”.
The state called Inspector Charles Bendembe who corroborated
the complainant on material respects.
His evidence was not challenged by appellant at all. As already alluded to supra Bendembe did not see anything improper in the manner she
called out the time for lowering the national flag. He said the chair fell over by mistake and
went on to confirm that she had the rifle in her right hand at the time of the
alleged assault.
The inspector went on to tell the court that if the
complainant was assaulted that must have been accidental. He was clearly mistaken on that point. The complainant received an injury to her
left ear. But, the appellant's case is
that the injury could have been accidental caused by the rifle which was on the
right side in her right hand. It would
have made a bit of sense had the injury been to the right ear. The court a
quo can therefore not be faulted for reflecting that story.
Inspector Bendembe said the appellant alleged that the
complainant had threatened to shoot him when in fact she had the rifle in her
right hand facing upwards. It was his
evidence that at no point did the rifle point at appellant. The appellant was therefore in no danger
whatsoever.
The inspector said there was a distinct smell of alcohol on
the appellant's breath which he described as “the stench” that was coming from
him. When he reprimanded him for that he
argued that he was sober.
I pause to observe that a combination of alcohol and the
belief by appellant that complainant was resisting orders culminated in him
doing what he did.
Inspector Bendembe was a fair witness. His evidence was not challenged at all. The appellant declined to ask him any
questions.
In his evidence the appellant adhered to his defence outline
which is as follows.
He stated that the complainant was subject to his
discipline. He said at the time he
called her to come to work she showed some negatives. Meaning that she acted in a manner that was
not consistent with his instruction. As
a sergeant major in the police force he had to enforce discipline. He complained that when he phoned her to come
to work she rushed to a senior officer who was not even on duty instead of
complying with his instructions. He had
to go to a senior officer on duty who insisted that she should be called for
duty. He alleged that she cut him off
several times on her mobile phone until he had to use a landline.
When she came for duty he ordered her to take a rifle from
the charge office and proceed to the gate where she was going to work for the
day. When making her way to the gate she
allegedly uttered the following words “my boyfriend loves to see me when I am
at the gate.” He interpreted those words
to mean that she did not like those duties.
He then ordered her to call out the time for lowering the flags.
After she had done so he told her that she had not done it
properly. He said she was supposed to
call out the time louder with a high pitched voice and standing at a fixed
position. He then called her to go where
he was at the front of the charge office.
But before she went to him she allegedly took a chair from
one side of the gate and threw it to the opposite side. Thereafter she proceeded to where he was and
stood a metre and half away from him. He
subjected her to a barrage of questions about why she had thrown the chair
which was state property. It was one of
his responsibilities to safe guard state property.
As he questioned her for her alleged bad attitude towards
work she removed the magazine from the rifle and cocked it. She then returned the magazine onto the FN
rifle.
Thereafter the rifle tilted towards him. She placed her hand on the rifle which
prompted him to grab hold of the weapon forcefully as he suspected that she was
about to shoot him. He then handed the
weapon to Constable Kotyoka in the charge office who then went to man the
gate. He then deployed the complainant
to other duties in the charge office. He
concluded by denying ever assaulting the complainant in any way.
The appellant was not being truthful when he suggested that
he had assigned the complainant to other duties in the charge office because
after the assault she made a formal report in the charge office.
I now turn to consider what appellant raised in his grounds
of appeal. His suggestion that the state
did not prove that he had the requisite mens
rea is without foundation in the light of the fact that he stated, prior to
the assault, that he intended to “sort out” the complainant. He thereafter then delivered a severe blow
causing serious injury to her left ear.
The fact that no one witnessed the blow being delivered does not mean
that the blow was not delivered. It
admits of no doubt that a severe blow was aimed at the complainant's left ear
damaging the ear drum causing loss of hearing to that ear.
Equally without merit is the suggestion that the assault
could have been accidental. If that had
been the case the injury would have been to the right ear as the rifle was in
her right hand. The appellant only
grabbed hold of the rifle after her had struck complainant on the left
ear. The injury was therefore not caused
by any part of the rifle. It was caused
by some object which appellant was not prepared to reveal. In the light of the foregoing the trial court's
findings on conviction cannot be faulted and are in fact unassailable.
As regards the sentence imposed the trial court gave its
reasons in a commendable fashion. It was
alive to the general rule that where appropriate first offenders must be kept
out of prison. It was further alive to
the fact that there was no rule of law which says first offenders must never be
sent to prison where circumstances demand.
The court considered the option of a fine and found it to be
inappropriate in the circumstances of this case.
It also discussed the option of community service at some
length citing decided cases on the matter and concluded that community service
was unsuitable in this particular case.
The suggestion by the appellant that, the complainant was
wrong in the first place by arguing and struggling with him who was a sergeant
major in charge of discipline is devoid of any merit. It is not true that complainant argued and
struggled with him. She, apart from
saying “Sir” did not answer back. She
never struggled with him.
This court and the Supreme Court have repeatedly stated that
assaults by policemen, soldiers and prison officers and others in authority
during the execution of their duties were grave offences. The trial court was alive to this and cited
the following cases for its guidance. In
the case of S v Mashatini HH-51-90 the complainant suffered a swelling on the face
after having been assaulted by a police officer. This court held that a sentence of 10 months
imprisonment with a part of it suspended was in accordance with real and
substantial justice.
In S v Ngoni SC-118-90 a prison officer
slapped the complainant in the face and kicked her in the stomach. The Supreme Court confirmed a sentence of 9
months imprisonment with 4 months imprisonment suspended. In S
v Sibanda and Others HB-112-93
security guards assaulted a woman on her buttocks. This court confirmed a sentence of 12 months
imprisonment with 6 months imprisonment suspended on the customary conditions
of future good behavior.
In S v Mafios and anor HC-20-93 a soldier
punched a woman without provocation. A
sentence of 12 months imprisonment with 6 months imprisonment suspended was
deemed to be in accordance with real and substantial justice.
In S v Mudimu S-127-94 a police officer with
20 years of unblemished service and a record of community service, struck two
blameless people without provocation when he was exhausted from long hours of
duty and struggling to find another address.
He hit one of the men on the head with a baton, impairing his hearing
(possibly permanently) and punched and slapped the other man. GUBBAY
CJ stated that because the assaults were committed by a law enforcement officer
while on duty, deterrence was paramount and, despite all personal
circumstances, imprisonment was appropriate.
In S v Chipare 1992(2) ZLR 276 a police
officer, on duty, assaulted a civilian.
A sentence of 18 months imprisonment was upheld by the Supreme Court
which went on to state that imprisonment was appropriate in cases where police
officers commit assaults while executing their duties. The Supreme Court labeled such offences as
grave offences.
The learned trial magistrate having surveyed the above
decided cases concluded that imprisonment was appropriate in casu. He found that the
appellant showed no remorse at all after damaging the complainant's left
eardrum causing loss of hearing.
This court's view is that a sentence of 15 months
imprisonment with 3 months suspended on the customary conditions of future good
behavior is not out of step with sentences usually imposed in cases of this
nature. The sentence is accordingly
upheld.
In the result the appeal is dismissed in its entirety.
Cheda
J …………………………………………… I agree
Cheda and Partners, appellant's legal practitioners
Attorney-General's Office,
respondent's legal practitioners
