Section 278 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for the production of an affidavit by a medical practitioner in lieu of oral evidence. Such affidavit must be properly commissioned.

In casu, what was submitted were the doctor's notes on the history of the sexual abuse. In the said notes, the doctor indicates that a proper medical affidavit will be filed. The court did not seek an explanation from the prosecutor why there was no proper medical affidavit. In any event, the document makes reference to Nobukhosi and Ayanda Ncube. The complainants here are Talent and Ayanda Ncube. It is not clear how the court came to the conclusion that Talent and Nobukhosi refer to the same person. The document shows that the second complainant had old bruises on her thigh and it is the doctor's observation that it was difficult to tell whether penetration had been effected or not.  The doctor also observed that there were no bruises on Nobukhosi but again it was difficult to tell whether penetration was effected.

On 24 March 2009, the body of the deceased was examined by Dr Patron T. Venge, the District Medical Officer stationed at Gokwe South District Hospital who observed the following:

“Clothes were soiled with dirty, (sic) bleeding per mouth and nostrils. Bruises on the back. The face was extensively swollen with fractures of both mandibles. The cervical spine was fracture(d) evidenced by a very mobile neck in rigor mortis.”

The doctor concluded that in his opinion the cause of death was “severe cervical spinal injury 2° (secondary to) assault.”

The findings of the doctor were recorded in an affidavit sworn to on 24 March 2009 before a commissioner of oaths.

That affidavit was produced in terms of section 278(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Section 278(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:

“In any criminal proceedings in which it is relevant to prove,

(a) Any fact ascertained by a medical practitioner in any examination carried out by him which is proper to the duties of a medical practitioner; -

(b) …,.

(c) Any opinion of a medical practitioner referred to in paragraph (a) or (b) relating to any fact or treatment referred to in that paragraph;

a document purporting to be an affidavit relating to any such examination or treatment and purporting to have been made by a person who in that affidavit states that he is or was a medical practitioner and in the performance of his duties in that capacity he carried out such examination and ascertained such facts in such examination or administered such treatment; and, in either case, arrived at such opinion, if any, stated therein shall, on its mere production in those proceedings by any person, but subject to subsections (11) and (12), be prima facie proof of the facts and of any opinion so stated.”

Subsection (11) requires service of such affidavit on the accused giving the accused three (3) days notice of the intention to produce it. Subsection (12) gives the court a discretion to, mero motu, or at the request of the prosecutor or of the accused, to call the doctor who deposed to the affidavit to appear and give oral evidence in relation to any statement contained in the affidavit.

In casu, Dr Venge appeared in court and gave evidence on behalf of the State….,.

Dr Patron Venge

She was the District Medical Officer when she performed a post mortem on the body of the deceased on 24 March 2009. Her findings are contained in an affidavit we have referred to above.

The fifth exhibit was an affidavit by Cst Tendai Chinyunyu who identified the body of the deceased to the doctor who performed the post mortem examination on the remains of the deceased and compiled Exhibit 6. 

The evidence of Dr I. Jekenya was also admitted.

Dr I. Jekenya…, examined the remains of the deceased and compiled a post mortem report; exhibit 5. The doctor observed and recorded the following injuries on the remains of the child:-

External examination

Under marks of violence he noticed some finger marks around the neck and base of the chin and bruises. There was a total fracture dislocation of the lower upper arm just above the elbow.

Internal examination

Under this head, he noticed the following:- 

The lung was pale and over-inflated. Bruised back of the chest wall from inside. Old healing fracture of the left seventh rib towards the back midline and right rib near the midline. The stomach contained copious amounts of fluid – liquor. The liver had multiple ruptures especially on the right back and midline of the liver and there was massive subcapsula (under liver sheath) hematoma.

The doctor remarked that the pale organs indicated severe hemorrhage and in this case it was caused by bleeding from the ruptured traumatized liver due to severe force that was used.

The findings on the neck were indicative of manual strangulation which, on its own, could have caused death. Similarly, the haemorrhage, on its own, could have caused death. As a result of these findings, the doctor opined that this was an intentional murder and was effectively and thoroughly carried out. The old healing fractures of the ribs were suggestive of previous child abuse by the assailants.

His conclusion was that death was:

(a) Due to severe hemorrhagic shock and manual strangulation;

(b) Liver traumatic ruptures;

(c) Callous murder; and

The post mortem report is consistent with the attack perpetrated on the deceased by the accused.

It shows that the deceased was stabbed several times. As a result, she sustained two deep wounds on both arms measuring 2cm and 1.2cm long respectively. She also sustained a deep penetrating chest wound.

The post mortem report shows the cause of death as head injury secondary to trauma….,.

Exh 1– the post mortem report is not very useful as regard the extent of the injury the now deceased suffered as it simply refers to the cause of death being head injury secondary to trauma.

Dr Tachiona, who carried out the post mortem, told the court that he did an external post mortem which entails just the physical examination of the body without opening it. All he observed was that the now deceased had a severe head injury. He did not open the skull, although he was adamant that the possibility of intra cranial haemorrhage was very high and that it was the possible cause of death. He explained, under cross examination, that internal bleeding in the brain is fatal because if blood accumulates in the head it squashes the brain.

Dr Tachiona's evidence is not challenged. However, he did not open the skull to establish as a fact that there was internal bleeding in the brain. His expert opinion is however not doubted, despite the lack of clarity on the description and extent of the injury.

The post mortem exhibit complied by Doctor Zimbwa made note of a +/_- 20cm horizontal stab wound running through the deceased's umbilicus and perforated bowel with faecal matter and omentum protruding through the stab wound. The report concluded it was this stab wound that took the deceased's life. He attributed death due to haemorrhagic shock and this abdominal wound.

The doctor was called to give evidence around his post mortem report.

The court noted there were omissions in the post mortem report. The report did not capture the back wound that was common cause. The doctor's explanation was that he must have overlooked recording that wound because he tended to concentrate on the stab wound on the deceased's abdomen as he concluded that this was the fatal wound.

It is imperative, in the court's view, that when a post mortem report is carried out it must be all-embracing; all the wounds must be recorded to enhance consistency. There should be no selective approach.

The court did, however, take cognisance of the doctor's emphatic position that in his view it would have been naïve for one to conclude that the +/_- 20cm opening on the deceased's abdomen could have been accidentally caused. When the State counsel sought clarification from the doctor on the accused's explanation of how the deceased may have sustained this abdominal injury the exchanges went along the following:-

“Q. Is it possible that the fatal injury could have been accidentally inflicted by someone who fell onto the victim holding that knife? (sic exhibit III).

A. Firstly, I must say the knife in question is potentially capable of inflicting the injury observed. It has a very sharp point indeed and so it can easily cause a penetrating stab wound. As earlier on said there was a stab and a drag of 20cm across the abdominal wall. That suggests to me that this was a deliberate action. If it was a simple stab wound yes, it could be possible to be a stab wound from someone falling from above but the 20cm suggests it was deliberate.”…,.

The doctor's cross-examination by the defence on this point provided no major shift from his position.

The post-mortem report in respect of the deceased noted the following:

“Cervical spine injury

Bruise to face.

Lacerated left ear.

Deformed cervical spine.”

Doctor Madzura, who conducted the autopsy, testified that he has been in practice since 2011. He made an external examination of the body. The body was placed in its anatomical position; that is supine on its back with the hands on its sides. It was then turned and palpated to note any abnormalities.

The doctor noted that the head was not lying in its normal position, hence the finding of cervical deformity at the C3-C4 level of the neck. This is the area that supplies impulses to the diaphragm. With such an injury death would have been swift.

He also noted laceration of the left ear. A laceration being a cut, he noted that it had a pattern of a human bite.

The fifth exhibit was an affidavit by Constable Edson Chikunguru who identified the body of the deceased to the pathologist Dr S. Pesanai who examined the remains of deceased on 10 January 2013 and compiled a post mortem report, exhibit five.

The doctor observed that the body had a stab wound on the left back 2cm from the midline 40cm from the top of the head. The heart had a perforated artrium (4 x 2cm). The lung had a left haemopnuemotharax 300mls. He opined that death was caused by:-

(a) Haemorrhagic shock;

(b) Stab wound to the heart;

(c) Sharp force trauma; and

The post mortem examination revealed that the blows the appellant delivered on the deceased's head with the log caused fractures of the skull in the frontal, right occipital and temporal regions of the head. 

The longest fracture was 5cm. The fractures caused depression of the brain. There was subdural haematoma of the parietal, frontal and temporal brain. 

The post-mortem report was also read and tendered with the consent of defence counsel. It states that the cause of death was;

(1) Aspiration.

(2) Haemorrhagic shock.

(3) Stab wound.

(4) Homicide.

A post mortem examination was carried out on the 29 November 2011. At that stage, the body was in an advanced state of putrefaction. 

Leonard Nhari 's evidence did not have any tinge of exaggeration and he explained that the other expert witnesses for the defence had the handicap that they worked with photocopies and based their conclusions on the photocopies presentend to them. 

Mr Nhari indicated that he found no physical evidence in the design and construction of the words in the questioned documents to indicate that it was authored by the late Dr Manolakakis. 

I accept the report of Mr Nhari as a fair report which is accepted by the court….,.

Cecil Greenfield tendered a very long and impressive curriculum vitae. He conceded that his credentials, as they appeared on his documents, were not quite accurate. He was no longer an associate member of the American Association of Handwriting Analysts. He stated that he was still an active member of the Forensic Science Organisation (UK) and a member of the South African Association of Forensic Documents Examiners. He indicated that he had no formal training as a handwriting expert. He indicated that he was “self taught.” He averred that his reports and findings have been accepted in the South African courts….,.

Mrs Louricka Buckley indicated that she is a professional handwriting examiner. She operates from Johanesburg in South Africa. She stated that she holds a certificate in Forensic Handwriting Identification, a course accredited by the Tecknicon of Pretoria. 

She was unable to produce any documentary proof of her qualifications. 

The affidavit of Constable Pascal Max Ndlovu was marked Exhibit III and its significance is that he is the police officer who identified the body of the deceased to the pathologist.

The Russian-trained psychiatrist, one of the very few in the whole country, Dr Elena Poskotchinova, concluded her affidavit as follows:

“In my opinion there is no evidence of mental illness, or mental retardation, at present. He was mentally stable at the time of crime and responsible for his action, probably he got head trauma in 2007 [result of EEG confirmed moderate to high amplitude posterior dominant alpha] and had psychotic behaviour in 2007 - 2008. But since 2010, there is no evidence of mental disorder (OPD cards confirm only pain on old suture line by doctor from United Bulawayo Hospital).”

However, the psychiatrist was not called to give viva voce evidence - her evidence being just formerly and routinely admitted into the record. After her evidence was read into the record, the learned trial Judge just expressed gratitude to the psychiatrist and proceeded straight away to judgment in which he observed in this regard as follows:

“The court referred the accused to be examined by a psychiatrist to ascertain his mental state in the light of the bizarre manner in which the murder was committed. Dr. Elena Poskotchinova's report was produced as Exhibit 8. The psychiatrist concluded that there was no evidence of mental illness or mental retardation at present on accused. The accused was mentally stable at the time of the crime and responsible for his action. He is fit to stand trial. The accused waited for deceased to fall asleep. He sharpened the axe and then struck deceased, firstly, on the head, followed by several blows on the neck to the extent of chopping the head off to ensure that he was dead. The accused is therefore guilty of murder with actual intent.”

It was submitted that it was incumbent on the court a quo to conduct an inquiry through calling of oral evidence from the psychiatrist who examined the appellant. 

I agree.

It was necessary to hear viva voce evidence from the psychiatrist, from the mother of the appellant, and any other relevant person. The psychiatrist would have had to explain to the court the basis for her affirmative finding that from 2010 onwards the appellant no longer suffered from any mental illness especially in the light of the fact that she accepted that the appellant had suffered from some “psychotic disorder” between 2007 and 2008. There are more questions which remained unanswered because of this oversight such as whether considering the lapse of seven months between being seen by the two doctors and the appellant's assessment by the psychiatrist, evidence of mental defect that had been observed by the doctors could have disappeared? Whether in the light of the two doctors' observation in 2011, the psychiatrist's affirmative assessment that from 2010 onwards the appellant suffered no mental illness was sustainable? What was it that the two doctors observed post 2010 which necessitated the referral to a psychiatrist if not some mental defect?

And as regards the appellant's previous mental infirmity, the psychiatrist could have helped shed light on whether the possibility existed for an illness induced by the noted head injury to recur - even be it only temporarily.

Section 278 of the Criminal Procedure and Evidence Act allows the production of medical reports from doctors in affidavit form. However, the court has the discretion, in terms of section 280 of the Criminal Procedure and Evidence Act, to order that the doctor be summoned to give oral evidence at the trial. The court may also send written questions to the expert who is enjoined to reply thereto. As was observed in G. FELTOES's Judges' Handbook for Criminal Cases, 1^st ed, 2009, Legal Resources Foundation…,.;

“It will be necessary to use the power to ask the doctor to give oral testimony when the original affidavit is inadequate and the court is unable to arrive at a just decision on the basis of this report. If the information is very scanty or vital information is omitted, or the information in the report seems to be contradictory, this power should be exercised. But if it contains all the necessary information there will be no need to summon the doctor. Anock 1973 RLR 154 (A); Sibanda A – 10 - 72 Melrose 1984 (2) ZLR 217 (S).”

The interrogation, through oral testimony, of expert evidence given on affidavit is necessary to avoid the error of treating such evidence as gospel truth or divine revelation. 

Expert opinion evidence is admitted to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge. In Mandy v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that it was not the mere opinion of the expert witness which is decisive but his or her ability to satisfy the court that, because of the special skill, training and experience, the reasons for the opinion expressed are acceptable. However, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion, and simply adopt it without questioning or testing it against known parameters.

In S v Zuma 2006 (2) SACR 257…, the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence. And, in my view, the court can only do this well if it requires the expert witness to give oral evidence in the clarification and elucidation of an affidavit that is otherwise technically dense and incomprehensible, contradictory, or inadequate in all respects except the conclusion. 

A court errs when it merely adopts the conclusions of an expert report without exercising its mind on it by, for example, calling for oral testimony or drawing the necessary inferences from the evidence.

Did the court a quo, therefore misdirect itself in accepting the expert evidence of the psychiatrist in the manner it did?

It appears to me that the court below did err in this regard. However, I am of the considered view that the misdirection was not of such a magnitude as to vitiate the conclusion that it reached on conviction. The psychiatrist's affidavit, taken in its totality, shows that an Assistant Clinical Psychologist, N. T. Mpofu, who examined the appellant, also concluded that the “patient does not show any sign of mental illness, and was stable at the time.” The same conclusion was reached when the appellant was examined at a clinic as an outpatient in July 2010. The mother's quoted evidence also shows that when she took the appellant to hospital on suspicion of mental illness the doctors discounted it and instead treated him for an ordinary headache. The psychiatrist also set out cogent reasons for her conclusion, thus:

“When examined by me, the accused appeared to be free from any acute psychotic symptoms. He was full oriented in all aspects, calm, cooperative. Denied any type of hallucination and did not display any symptom of delusional behaviour nor decline in memory or intellect. Denied alcohol abuse in past. Admitted his crime of killing his brother; said the brother had spanked him like a child early morning on the day of the crime. He complained that accused was eating too much peanuts. “I was angry and after that axed him as punishment.” He has insight into his mental illness. According to staff report: No evidence of unpredictable behaviour since admission.”

Accordingly, the court a quo's decision on conviction cannot be interfered with….,.

The post-mortem report showed that the deceased sustained the following injuries. 

A 5cm wide stab wound in the right second intercostal space between the first and second ribs near the chest bone (sternum) about 2cm from the mid-line. The wound passed through the chest wall muscles and broke the right second rib end. The wound passed the right atrium (upper chamber of the heart) making a 4cm hole on the front. The total distance travelled by the blade was 9cm. 

Exhibit 1 is a post mortem report compiled by Dr A. Dube who examined the now deceased on 20 January 2016 and observed that the now deceased had bruises on the right earlobe and that some discharge was coming from that right ear.

We also reject the psychiatrists report as it is not founded on fact.

The trial was delayed by the absence of the forensic pathologist, Dr Gonzalez, who, at the conclusion of his contract, returned to Cuba, his home country before he could testify. Attempts to call him from his country to testify that were made between 7 June 2011 and 4 June 2014 proved futile.

The matter was finalised without the benefit of his oral testimony….,.

The production of the postmortem report was opposed on 7 June 2011 on the basis that the pathologist had failed to record any herpes symptoms that should have been apparent on a casual physical observation of the deceased body such as weeping and watery lesions, poor health, and emaciated body.

Attempts to use diplomatic channels to have the pathologist, Dr Gonzalez, called failed to bear fruit. The matter resumed on 4 June 2014. The Cuban doctor was absent. The post mortem report was produced by consent as exhibit 2. In terms of section 278(5) as read with subsections (11) and (12) of the Criminal Procedure and Evidence Act [Chapter 9:07], as correctly interpreted by BHUNU J in S v Tawana Michael Mhute HH12-12….,; once it is demonstrated that the post-mortem report was made by the person who carried out the examination in the course of his or her duties and that the accused was afforded at least three days' notice, the report may be produced in evidence in the face of the accused's objections as long as any party, including the court, is permitted to call any other expert to explain the contents of the affidavit and answer any relevant questions concerning the meaning of medical terms used and conclusions reached from the observed facts or allegedly omitted facts.

The accused chose not to call such an expert other than the maker to clarify whatever misgivings he had with the contents of the postmortem report. In fact, in her oral submissions, counsel for the accused accepted the contents in full but averred that as the accused had not assaulted the deceased they did not apply to or implicate him.

The pathologist examined the remains of the 42 year old well-nourished deceased on 22 October 2008 for 30 minutes. An external examination revealed clothes with grass, pale cuticle, bleeding from the mouth, multiple bruises on both arms and hands, chest, abdomen, face and head. He did not conduct an internal examination of the head, skull and brain. He, however, conducted an internal examination of the thorax and observed approximately 2 litres of blood in the chest cavity, rib fractures, and both left and right lungs had extended pulmonary haemorrhage. The abdomen had blood in the cavity; there was a laceration on the spleen. The large and small intestine, liver and gall bladder, pancreas and suprarenals, spleen, kidneys and bladder were pale with signs of shock. He concluded that death was caused by hypovolemic shock, laceration of the spleen and pulmonary haemorrhage secondary to assault.

We are satisfied that the pathologist conducted a thorough investigation of the body. The postmortem report established, beyond a reasonable doubt, that death was a direct result of the protracted assault perpetrated on the deceased by whoever participated in the assault orgy of 12 October 2008.

I should comment…, that the post-mortem report, as provided in this case, is not explicit and informative at all. It must provide the court with the nature of the injuries and a detailed account not just the conclusion.

The 40 years old accused stands accused of the crime of murder which was alleged to have been committed on 20 September 2013 at Gore Village, under Chief Nyamhondo, in Mberengwa in the Midlands Province.

He is alleged to have caused the death of Chipochashe Ndlovu, a female infant aged 3 years, by forcibly having sexual intercourse with her per vaginam and per anum, and assaulting her all over her body with an unknown object, intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

He denied the charge when it was put to him and went on to state that he never did all that was being alleged.

The State Outline was read for the record and produced as exhibit one. I do not intend to read it all over again. I shall, however, read the Defence Outline which was produced as exhibit 2 and it reads thus:

“The accused, having been served with the charge sheet informing him that he is facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], provides his defence outline as follows:

(1)The accused denies that he caused the death of Chipochashe Ndlovu in any way whatsoever.

(2)The accused denies that he had sexual intercourse with Chipochashe Ndlovu either through the vagina or through the anus.

(3)The accused person denies that he assaulted Chipochashe Ndlovu in any way whatsoever.

(4)The accused will state, that, on 20th September 2013, he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen. The next time he looked at Chipochashe Ndlovu, he observed that she was in fits, frothing from the mouth, and had fallen to the ground. He will state that he carried her to the homestead and laid her in one of the huts. She later died that same day.

The accused will give evidence but will not call any other witness.”

Exhibit 3 was the accused's confirmed extra curial statement where he maintained the story in his Defence Outline as follows:

“I have understood the caution, I do not admit to the allegations levelled against me, that I killed Chipochashe Ndlovu, an infant of 3 years, by forcing sexual intercourse with her through the vagina or through the anus and used an identified object to cause bruises on her body and she died because I did not kill her.

I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood. I later realised that the deceased had fallen to the ground as if attacked by fits. I carried deceased by the arm pit but she was unconscious until I reached home where she later died with froth coming out of the mouth. That is all.”

There is a material discrepancy between the accused's confirmed statement and his Defence Outline which he sought to rely on his evidence.

When he made his statement to the police, two days after the death of the deceased, matters were still very fresh on his mind. He stated thus:

“I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood….,.”

In his Defence Outline, which was compiled two days before the trial, on 26 January 2015, which was after a period of one year four months, he stated as follows:

“The accused will state, that, on 20th September 2013, he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen….,.”

The fourth exhibit was a report form for the alleged sexual abuse and rape cases which was compiled by a nursing sister at Musume Hospital who examined the remains of the deceased a day after her death.

The nurse recorded the following in the report:

(a) Fresh bruise above the right eye;

(b) Two (2) fresh bruises on each side of the abdomen just above the groins; and

(c) A fresh bruise on the back.

On the genital examination, she recorded thus:

Bruises seen on the labia majora.

She marked both sides of the labia majora and also shaded both sides of the libia minora but made no narration about the shading on the labia minora.

She noted that the hymen was intact and there was no bleeding.

She finally opined that penetration was very likely.

The nurse gave viva voce evidence…,.

Exhibit 5 was a post mortem report compiled by Doctor S. Pesanai. He examined the remains of the deceased five days after her death.

He observed that the body was decomposed and had severe blotting; there was a small laceration 0.5cm at 6 o'clock; the anus was dilated with rectal laceration on the posterior. The skull had separated sutures frontal and both parieto.

He further remarked, that, the separated sutures that join the cranial bone could have been caused by pressure of decomposing brain or due to head injury.

The doctor could not see any obvious cause of death due to decomposition but went on to state that the child was sexually abused and that there was penetration though the anus causing a laceration in the rectum.

He concluded that the cause of death was uncertainable due to decomposition.

There was, however, a lacerated rectum giving rise to the conclusion that the child was sexually abused.

The doctor gave viva voce evidence…,.

The evidence of two police officers was admitted in evidence, by consent, as it appears in the State Outline in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Both officers were stationed at Mataga Police Station. The officers were Simbarashe Makope and Freedom Nyamutsamba. Their evidence, which was substantially materially similar, was that they did not know both accused and deceased prior to this case. On 21 September, they received a report of a suspected case of rape and murder at the station. They both proceeded to Nkomonye Village accompanied by one Shumeka Shumba, the informant.

On arrival, they found the deceased placed in a hut.

On examining the body, they observed bruises on the right side of the head, on the back, on the forehead, and on the abdomen; and froth coming out of the mouth. They then caused the body to be ferried to Musume Hospital for a medical examination. Later, the body was conveyed to United Bulawayo Hospitals for a post mortem examination....,.

What also emerges from the admitted evidence of the police officers is that the body had bruises I alluded to above, on the forehead, on the right side of the head, on the back, and on the abdomen, which could not have been self-inflicted.

The grandmother of the deceased, Netsai Dube, agrees with the police officers, that, she observed the bruises on the back of the deceased. She further had examined the deceased earlier than the police officers, and had, in addition, noticed that the body had swellings on both sides of the neck.

The deceased's vagina was wide open....,.

The bruises were also observed by Winnie Gumbo, a nursing sister for 25 years - a day after the deceased died.

I repeat, that, she marked her bruises on her report, exhibit 4, as follows -

(a) Fresh bruise above the right eye;

(b) Two (2) fresh bruises on each side of the abdomen just above the groins; and

(c) A fresh bruise on the back.

All these bruises could not have been self inflicted.

On examination, she observed further bruises on both sides of labia majora and labia minora. She told the court she had, by mistake, omitted to narrate on her report the bruises that are reflected on the labia minora on the diagram.

It was further her testimony, that, the hymen was intact but still concluded that penetration was very likely. Consequently, she held that the deceased was sexually abused....,.

Under cross examination, she said the bruises on the abdomen, and back, and right eye led her to the conclusion that force or pressure was applied to the areas using fingers.

Dr Sanganai Pesanai corroborates the nursing sister on the conclusion that the deceased had been sexually abused. His finding was that the abuse he noted was per anum. His finding was based on the fact that he observed a laceration in the rectum of the deceased's body. He was adamant and emphatic that the laceration was ante mortem and not post mortem and explained that the laceration could not have been due to decomposition of the body.

The doctor has been in the pathological field for the last 15 years.

He further stated, that, the rectum was part of the large intestines and was inside the body and the laceration could only have been caused from outside ante mortem and not post mortem.

MCNALLY JA, in S v A Juvenile 1989 (2) ZLR 61 (S), said:

“I am in danger of straying into fields of sociology and psychology where I have no expertise….,.”

The post mortem report…, was produced in terms of section 278(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The section provides that an affidavit by the doctor who has carried out an examination stating that he or she carried out such an examination and ascertained facts and arrived at an opinion, shall be prima facie proof of those facts and that opinion “on its mere production.”

Given the injuries reflected in the post mortem report, it is very unlikely that that knife, if it was the murder weapon, would not have had bloodstains.

Our view is that if the State wanted to derive some evidential value from that knife it should have been sent for forensic examination.

The State alleges that a misunderstanding…, ensued as a result of which the accused struck the complainant with a hoe handle all over the body. He allegedly sustained a deep cut on the head.

A medical report supporting the allegations of assault was produced. When it was produced the accused person was never consulted. His right to be given notice of it were not explained to him.

The now deceased's remains were examined at Harare Central Hospital on 29 October 2001 by a pathologist, Dr S A Mapunda. The following observations and findings were made:

(i) The now deceased was 60 years old and ill-nourished.

(ii) Surface wounds or injuries noted was the deformed rib cage with the crepitation of broken ribs bilaterally involving lower cage of the body i.e sound made by broken ribs.

(iii) Cynorosis of the body - which relates a condition in which the skin and mucous membrane take a bluish colour due to lack of enough oxygen in the blood.

(iv) Oedema or congestion of the brain - swelling or excess fluids.

(v) Injury on the right lung - there was bilateral fracture of the 7^th, 8^th and 9^th ribs with contusion (bruises) of the lung which was oedematous, achymotic and congested.

(vi) The cause of death is due to be chest injuries, i.e bruises, and rib fractures and lungs contusion.

Doctor Ngere was not called to amplify on the medical report.

Apart from mere speculation and conjencture in this case, lay witnesses are unable to tell us the exact cause of death with any degree of accuracy. The exact cause of death can only be determined scientifically through a postmortem report. To that end, the State called the evidence of Dr Aguero Gonzalis, a specialist expatriate forensic pathologist. He is a qualified Legal Medicine Specialist of 30 years standing. He conducted an examination of the deceased's body and compiled a post mortem report...,.

Dr Aguero was an honest and credible professional witness who had no motive whatsoever for misrepresenting facts.

The post-mortem report was compiled by Dr Lavaia Keith who examined the now deceased's remains on 31 October 2016 at Chiredzi General Hospital. The doctor noted the following;

(i) That the now deceased had blood clots in both the ears and nostrils.

(ii) The now deceased had a laceration on occiput.

(iii) There were no long bone fractures noted.

(iv) The cause of death was base skull fracture.

Dr Lavaia Keith gave viva voce evidence further explaining the contents of the postmortem report. He explained the cause of death was the fracture of the lower most part of the skull described in medical terms as base skull fracture. In brief, he explained that the skull bones protect the brain and that the base skull is where vessels and nerves from which the functions of the human body are passed in and out.

According to the doctor, the bloods clots in the nostrils and ears were indicative of base skull fracture. The doctor's view was that in order to inflict such an injury a blunt object would be used with a lot of force. The doctor said a hoe handle could inflict such an injury or even where the deceased hit against a hard object like a 3-legged pot.

Exhibit 1 a post mortem report authored by Dr Roberto who examined the remains of the now deceased and indicated the cause of death as severe celebral oedema and damage, subdural haematoma and subdural haemorrhage arising from the head trauma caused by the stabbing….,.

Exhibit 3 is a report by Dr Maxmillian N. Dzowa who attended to the now deceased at Parirenyatwa Hospital in Harare, after his admission on 2 January 2017. The following is outlined in that report;

(i) The now deceased had the knife lodged in his left side of the head.

(ii) He was sedated for a CT scan of the head to be taken and in preparation for the theatre.

(iii) The now deceased's condition is described as being bad as he was deeply torpid (i.e. death like or comatose).

(iv) He was intubated and taken for CT scan which revealed that he had sustained “a perforating injury starting from the left temporal area with a trajectory passing through the suprantorial compartment on the left crossing the midline in a diagonal posterior inferior direction through the posterior fossa. The tip of the knife was lodged in the bone of the right side posterior fossa and there was evidence of pressure in posterior fossa and bleeding along the tract of the knife.”

(v) The knife was removed on 2 January 2017 and the now deceased was put in the intensive care unit for the post-operation care but he passed on 4 January 2017....,.

In our view, the cause of the now deceased's death is not in issue. The same can be said about the injury he sustained and the medical procedure the now deceased went through before he unfortunately passed on 4 January 2017. To shed more light on this we shall deal with the evidence of Dr Maxmillian N. Dzowa who led a team of doctors who attended to the now deceased and compiled the report, exhibit 3. He also explained certain medical terms contained in a rather illegible post-mortem report compiled by Dr Roberto.

Dr Maxmillian N. Dzowa (Dr Dzowa)

Dr Dzowa, who has a Degree in medicine and surgery and a Masters' qualification as a neuro surgeon with 3 years experience. He specializes in diseases relating to the brain, spinal cord and nerves. He was the lead doctor who attended to the now deceased from 2 January 2017 at Parirenyatwa Hospital until the now deceased's death on 4 January 2017.

In his evidence, Dr Dzowa said the now deceased was admitted with a knife lodged in his head. His blood pressure was inaudible (or very low) and was bleeding profusely from both the nose and the mouth. He explained how the now deceased was treated and the medical procedure carried out.

Dr Dzowa said the now deceased was given medication to raise his blood pressure and had to be sedated in order to insert a tube to enable him to breathe and avoid blood going into his lungs. In order to remove the knife embedded in the now deceased's head a scan was done. This was a necessary procedure as pressure was building in the now deceased's brain.

In relation to the injury sustained by the now deceased, Dr Dzowa said the knife entered through the left side of the head right into the head and was lodged on the opposite (right side) of the head. As a result, there was a lot of bleeding inside the head and also pressure was building inside the head. The now deceased, whose blood pressure was exceedingly low and going down, was in a comatose which meant he was un-responsive and not feeling any pain.

According to Dr Dzowa, the now deceased had to be taken to the theatre in order to remove the knife lodged in his head. He said this was a difficult process as the knife was embedded in the skull. The knife was in the skull bone to the hilt. The whole blade was inside the skull and in order to remove it they had to first remove the bone around the knife blade and its end was also lodged into the bone. After this delicate process of removing the knife the blood was removed around the knife tract or path. He said the other specialists dealt with stopping the bleeding from the ear, nose and mouth. After this procedure the now deceased was taken to the ICU but his blood pressure remained very low and was virtually brain dead. The now deceased passed on two (2) days later on 4 January 2017.

Dr Dzowa was of the view that in order to inflict such an injury severe force was used. This was informed by the fact that the knife perforated the skull and remained embedded in the other side of the skull. It could not be removed without going through the medical procedure he explained. Further, Dr Dzowa pointed out that despite their valiant efforts the now deceased's chance of survival was very minimal because the knife perforated the brain from one side of the head to the other side thus cutting across the vital brain areas responsible for important body functions like breathing and performance of the heart.

Dr Dzowa commented on the accused's version on how the now deceased was injured, which is that the accused had thrown the knife at the now deceased from a distance. The doctor dismissed this as not possible because the knife went through the skull to the other side of the head and was only stopped by the handle. This means that the whole blade, 14cm long, was inside the skull and this could not have been achieved by merely throwing the knife at the now deceased hitting his head at a distance. In fact, Dr Dzowa said the knife entered the skull above the right ear and went through the skull up to below the left ear (which is on the other side).

We also benefitted from Dr Dzowa's explanation of the medical terms contained in the post mortem report which was also not very legible in some portions. The important findings contained in the postmortem report are as follows;

(i) The now deceased's brain was swollen and there was bleeding inside the brain.

(ii) There was lots of water inside the now deceased's lungs which impaired his breathing.

(iii) The heart muscle of the now deceased was swollen.

(iv) There were fluids outside the now deceased's intestines.

(v) There was blood within the now deceased's stomach and there was irritation of the stomach wall.

(vi) The cause of the now deceased's death was the severe swelling and damage on the passage of the knife; bleeding inside the skull - all arising from the head injury caused by the stabbing with the knife.

The State alleges that the now deceased advised his wife, Sophia Shiri, about the alleged assault that night as he complained of a headache. The now deceased advised the village head about the alleged assault the next day. It is the State case that three days later, on 13 November 2015, the now deceased's condition deteriorated and he was ferried to Musiso Mission Hospital in Zaka after which he was transferred to Masvingo Provincial Hospital and then to Parirenyatwa Hospital in Harare where he passed on on 17 November 2015. A post-mortem was performed at Ndanga Hospital in Zaka where the cause of death was said to be a result of head injury....,.

The accused contends that the post mortem report is misleading as the findings therein were made at the behest of the now deceased's relatives who were hell bent on fixing the accused for the altercation he had had with the now deceased….,.

A total of three (3) exhibits, being exhibit 1, the postmortem report; exhibit 2, the accused's confirmed warned and cautioned statement, and exhibit 3, Form 221 (Request for the post mortem report) were produced by consent.

In our view, nothing turns on Form 231 tendered as Exhibit 3….,.

The postmortem report…, compiled by Dr Chaibva on 22 November 2015 indicates that no external injuries were observed. The cause of death is indicated as head injury….,.

Philemon Tamirepi said..., said the body could not be immediately buried as a post - mortem had not been done and the now deceased's body was ferried to Masvingo Provincial Hospital for that purpose. He however said the post mortem was not done at Masvingo Provincial Hospital but at Ndanga District Hospital in Zaka....,.

Sophia Shiri..., confirmed that at Musiso Mission Hospital the now deceased was treated for diabetes and that he was referred to Masvingo Provincial Hospital for a scan to be done on his head. From Masvingo, Sophia said the now deceased was transferred to Parirenyatwa Hospital in Harare where he later passed on....,.

When Sophia was probed, in cross-examination, she said the now deceased's diabetic condition was only diagonised at Musiso Mission Hospital in Zaka. This would seem to suggest that the now deceased may well not have been aware of the fact that he was diabetic....,.

Dr Tafara Chaibva (Dr Chaibva)

In our assessment, Dr Chaibva is the most critical witness in this matter.

At the material time, Dr Chaibva was based at Ndanga District Hospital in Zaka. Currently, he is based in Namibia.

Dr Chaibva testified that he examined the remains of the now deceased's body at Ndanga District Hospital in Zaka, as per Exhibit 3, at the behest of the police, on 22 November 2015. He said upon examining the now deceased's body he did not find any external injuries. He concluded that the cause of the now deceased's death was head injury.

The evidence of Dr Chaibva is not only puzzling but further complicates this matter. His professional conduct leaves much to be desired on how he compiled the post mortem report. We say so because he admitted that what he endorsed as the cause of the now deceased's death is solely based on what the police told him about the history of the now deceased's illness - it was not his own professional independent finding. Further, he had not observed any injury on the now deceased's head or any fracture on the head. The mind boggles as to why he did not simply say the cause of death was in-determinate from his examination and probably recommended a full postmortem by a pathologist as he had only done an external post-mortem. In fact, he conceded that his so-called finding was based on the police report to him that the now deceased's head had been bashed against a rock!!

From the evidence of Dr Chaibva this matter is further complicated by the fact that the police were not even candid with him in disclosing the medical history of the now deceased and the sequence of events. It turns out that the police, in a bid to have a post mortem done by him at Ndanga Hospital, lied to him that the now deceased had died at home when in fact he had died at Parirenyatwa Hospital in Harare. It is unclear why the postmortem was not done at Parirenyatwa Hospital where the now deceased died and how his body was released without such a post mortem having been done. In fact, Dr Chaibva was unaware that the now deceased had been first taken to Musiso Mission Hospital, then to Masvingo Provincial Hospital. It was not even disclosed to him that he was requested to perform a post-mortem four days after the now deceased's death. He was never advised that the now deceased also suffered from high blood pressure and diabetes. He was not aware that doctors at Masvingo General Hospital had refused to carry out a postmortem report insisting that it should be done at the hospital where the now deceased died - at Parirenyatwa. In fact, the now deceased had never been admitted at Ndanga District Hospital in Zaka where the post-mortem was subsequently done but had been attended to at Musiso Mission Hospital in Zaka, Masvingo Provincial Hospital and Parirenyatwa Hospital in Harare.

While Dr Chaibva's conduct cannot be said to be beyond reproach, the police conduct in this matter deserves censure. Why did the police lie to Dr Chaibva that the now deceased had died at home and failed to disclose to him the sequence of events? Clearly, the investigations in this matter were not only poorly done but done in an unprofessional and dishonest manner. The motive is difficult to understand. This is a case which called out for a proper full post mortem to ascertain the proximate cause of the now deceased's death or at least to have a postmortem done at Parirenyatwa Hospital where the now deceased died. The conduct of Dr Chaibva further adds to this jigsaw puzzle.

The cause of the now deceased's death is not an issue this court can speculate on. It is an objective fact which should be proved from the facts before the court.

Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge.

In Menday v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that;

“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.”

In R v Chidota 1966 (3) SA 428 (another criminal matter) the learned judge QUENET (JP) held that:

“Where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”

It is trite that, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.

In S v Zuma 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence.

In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent's signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.

The pathologist could not determine the cause of death due to advanced decomposition.

The Constitutional Court of South Africa expressed itself on the subject of expert witnesses in Glenister v President of the Republic of South Africa and Others (CCT 28/13) (2013) ZACC 20; 2013 (11) BLCR 1246 (CC) (14 June 2013) (accessed on 9 February 2015);

“In essence, the function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable. Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is, in principle, inadmissible because of its irrelevance. The rule was crisply stated in Gentiruco A.G. v Firestone S.A. (Pty) Ltd 1972 (1) SA 589 (A) at 616H:

'[T]he true and practical test of the admissibility of the opinion of a skilled witness is whether or not the Court can receive “appreciable help” from that witness on the particular issue'. Expert witness testimony on an ultimate issue will more readily tend to be relevant when the subject is one upon which the court is usually quite incapable of forming an unassisted conclusion. On the other hand, the opinion of the witness is excluded not because of a need to preserve or protect the fact-finding duty of the court, but because the evidence makes no probative contribution.”

Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves - no more, no less. The weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Two critical matters spring to mind as a consequence;

(i) Firstly, expert evidence does not “trump all other evidence”. Woodhouse v Britannic Assurance p.l.c., Employment Appeal Tribunal, U.K.E.A.T. 0132/03/RN para. 25.

Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula against which actions are then to be rigidly judged with a mathematical precision. Stewart v Glaze (2009) E.W.H.C. 704.

In HKSAR v Chan Sze Pui, Gloria (2004) H.K.C.U. 298 it was held that a court is not compelled to accept the evidence of an expert but is entitled to accept or reject that evidence, like any other, bearing in mind the whole of the evidence in the case. The court had placed the expert testimony in the context of the whole of the evidence and determined what weight could be placed upon it.

(ii) Secondly, a court must not consider expert evidence in a vacuum. It should not therefore be artificially separated from the rest of the evidence. To do so is a structural failing. A court's findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa.

Similarly, the South African courts have said that expert testimony can serve as a useful tool or guide against which the reliability of the testimony of eyewitnesses can be checked and tested. Van der Westhuizen and Another v SA Liberal Insurance Co. Ltd 1949 (3) S.A. 160 (C). It is for the court to determine, on the balance of probability, on all the evidence, where the probabilities lie.

In Routestone Ltd v Minories Finance Ltd and Another (1997) B.C.C. 180, JACOB J observed that what really mattered in most cases was the reasons given for an expert's opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “(if) the reasons stand up the opinion does, if not, not…,.” A court should not therefore allow an expert merely to present their conclusion without also presenting the analytical process by which they reached that conclusion.

In R v Nyamayaro 1967 (4) SA 263 (RA) BEADLE CJ adopted the well-known dicta of GREENBERG JA in Annama v Chetty and Others 1947 AD 142…, where the learned Judge of Appeal said, in speaking of the evidence of a handwriting expert:

“His function is to point out similarities or differences in two or more specimens of handwriting and the court is not entitled to accept his opinion that these similarities or differences exist, but once it has seen for itself the factors to which the expert draws attention, it may accept his opinion in regard to the significance of these factors.”

See also S v Sibanda 1963 (4) SA 182 (SR).

The fact of the matter in the present case is that the expert witness, Assistant Inspector Innocent Dube, did not compile his report in a manner which would permit a court to understand and follow the reasoning behind his conclusions. He sought to excuse the scanty nature of his report by stating that although it was desirable to include the detail which would allow the court to follow his reasoning, this was not a legal requirement for the sufficiency of his report.

In maintaining this stance, he failed to play his role as an expert….,.

I am persuaded by the argument so clearly laid down in the case law, in this and other jurisdictions, that there has to be such evidence laid before the trier of fact as sufficient for him or her to make up his own mind as to the correctness of any proposition which the expert makes in his testimony.

Clearly, there is nothing, besides Assistant Inspector Innocent Dube's say so, to enable the court a quo to have arrived at the conclusion that the bullet which was fired at the complainant in the Christon Bank incident was discharged by the pistol recovered from the appellant. As such, one cannot state with certainty that this was indeed the case, as the prosecution argued. Without this detail, the trial court was not entitled to find, as it did, that the expert's evidence was admissible. It was not. His opinion was not backed by evidence. It remained that - an opinion; and was therefore irrelevant to the issue to be decided.

The medical affidavit by the attending doctor rated the complainant's injuries as serious. However, the affidavit had not been signed before a Commissioner of Oaths. That was the one anomaly noted and raised by the scrutinising magistrate. He said, in terms of section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07], the affidavit should not have been accepted as an exhibit.

The post-mortem report shows that the now deceased died of haemorrhage shock arising from stab wounds. In fact, there were three stab wounds described as follows;

“±2cm stab wound on right subclavian area, piecing through chest wall to lung.

±2cm left subclavian stab wound piercing through muscle but not chest wall.

±1cm superficial stab wound left subclavian area.”

The cause of the now deceased's death is not in dispute. As per exhibit, 1 the post mortem report, the doctor noted the following injuries;

“1. Deep stab wound in right supravicular fossa, reaches apex of right lung; lung is puncture (air expels on chest compression); ±4cm wide, smooth straight edges.

2. Deep laceration right tibia area ±7cm (to bone level).”

The cause of death is stated as haemorrhagic shock arising from stab wounds.

The cause of death was established as hypovolemic shock secondary to bleeding bowel; Post mortem report by Dr Forgiveness Chitungo, exhibit 3, refers….,.

Dr Chitungo also testified orally.

He basically narrated how he observed the body of the deceased and compiled the postmortem report. The doctor's evidence was clear evidence to follow as he explained his observation. He was highly professional in the manner he testified. Even though he was unnecessarily subjected to lengthy cross examination by the legal counsel, he did not lose his head. He did not attend to the deceased as a patient but carried out a post-mortem examination. He observed injuries consistent with assault by a sharp object. His conclusion was well anchored on his observations. The doctor was candid with the court when he pointed out that the injuries could be described as moderate to severe.

We must point out that we wondered where defence counsel got the impression that the doctor said the injuries were neither moderate nor severe. The doctor's evidence could have easily been formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it was clearly not controversial. We hasten to say the doctor, who was highly professional, assisted the court on medical science.

The trial proceeded with the State and defence counsels submitting, by consent…, an affidavit of evidence by Dr Walter Mangezi. The affidavit confirmed that the accused was mentally disordered and required further management in a long term special psychiatric institution. 

The post mortem report by Dr B Dhliwayo, which concluded that the deceased, Kustera Muyambo, died as a result of head injury following deep cuts to the head, was also tendered as exhibit 3 by consent.

Admitted in evidence as exhibit 1 was the post-mortem report done by Dr Gonzalez, a duly attested medical practitioner and forensic pathologist. His report concluded that the deceased died as a result of hypovolemic shock, abdominal aortic artery damage, and the stab wound.