Criminal Appeal
MAWADZE
J: On 29 March 2017
we dismissed the appeals in respect of both matters being CA 7/16 (Ref CRB MBE
286/16) and CA 9/16 (Ref CRB MBE 287/16). We gave the reasons for dismissing
the appeals ex tempore. Our view is
that it is prudent that we provide full written reasons for dismissing the appeals.
These are they;
The
appeals in respect of both matters were consolidated by my brother MAFUSIRE J
on 14 March 2017 by consent under Ref CON 3/17. This was after an application
by the appellant's legal practitioners. The basis for the consolidation was
informed by the fact that both matters CA 7/16 and CA 9/16 relate to the same
accused person, being the appellant. Both matters were also dealt with by the
same senior Magistrate sitting at Mberengwa.
The
background facts in both matters are as follows;
CRB
MBE 287/16 (CA 9/16)
On
16 September 2016 the 42 years old appellant and the complainant (whose age is
not given) were enjoying themselves drinking beer at Benzeni business centre,
Chief Maziofa in Mberengwa at about 18.00 hours. They got involved in a
misunderstanding whose cause is not agreed. The State alleges it was over an
alleged love affair between the appellant's cousin and the complainant. The
appellant alleges that it was related to an assault complainant had previously
perpetrated on appellant's younger brother.
The
appellant who was in the company of an accomplice who is at large teamed up to
manhandle the complainant by holding complainant's hands and legs suspending
him in the air. While in that position they proceeded to assault the complainant
on the head and face until the complainant managed to escape. The medical
report states that the complainant sustained bruises on the face and had a
painful tender shoulder. The doctor described the injuries as serious and that
moderate force was used to inflict those injuries. There was no potential
danger to life and no permanent injuries.
The
appellant was arraigned before the senior Magistrate sitting at Mberengwa on 23
September 2016 after which he pleaded guilty to the charge of contravening
section 89(1)(a) of Criminal Law (Codification and Reform Act) [Cap 9:23] [The Code] which relates to
assault.
After
being duly convicted the appellant begged for a non-custodial sentence. In
mitigation the appellant who was a first offender revealed that he has 6
children and that he survives on gold panning (most likely illegal). The
appellant had US$70 and owned 6 goats and 3 beasts as assets.
The
trial Magistrate was not persuaded that the appellant deserved any measure of
leniency, let alone a non-custodial sentence. The trial Magistrate reasoned
that the appellant's conduct was intolerable and deserved what he or she called
an exemplary sentence. The appellant was sentenced to 9 months imprisonment of
which 3 months imprisonment were suspended for 3 years on the usual conditions
of good behaviour, leaving the appellant with an effective term of 6 months
imprisonment.
CRB
MBE 286/16 (CA 7/16)
In
this matter the appellant was convicted of 2 counts on 4 October 2016 after a
trial.
In
count 1 the offence relates to assaulting or resisting a peace officer in
contravention of s 176 of the Code.
In
count 2 appellant was convicted of contravention section 157(1)(a) of the Code
which relates to possession of drugs, specifically dagga.
The
facts proved in both count 1 and 2 are briefly as follows;
In
count 1, the complainant a Constable in the ZRP and other two details went to
the appellant's residence to investigate the case of assault which had occurred
on 16 September 2016, that is relevant to CRB MBE 287/16. They were all in
police uniform. When they located the appellant at his tuckshop at Village 4,
Gwamasaka, Chief Maziofa, Mberengwa, the appellant took to his heels and locked
himself up in his tuckshop. The appellant armed himself with an axe and
threatened to kill the police officers if they dared to arrest him. The police
officers were unmoved. They kept vigil at appellant's tuckshop. The appellant
realising the futility of his threats decided to come out of the tuckshop. The
police officers moved to handcuff him. The appellant would have none of that.
He became violent and head butted the complainant twice on the left upper eye
causing a swollen left eye and head. The appellant was nonetheless subdued by
the three officers and duly arrested.
The
medical report shows that the appellant suffered an injury described as “left
periorbital oedema” which the doctor described as serious though not life
threatening. Moderate force was used to inflict those injuries and did not
cause permanent disability.
In
respect of count 2, the appellant after his arrest in count 1 was taken to the police
station and handed over to one Constable Muziwi who was on duty in the charge
office. The appellant was then subjected to a routine search for purposes of
being detained. During the search three twists of dagga weighing 0,010 kg were
found in the pocket of a pair of shorts the appellant was wearing underneath a
work suit trousers.
In
count 1 two police officers and a local village head testified against the
appellant. The appellant gave evidence and called his younger brother one
Wilfred Chitoro as a defence witness.
In
respect of count 2 the police officer who searched the appellant testified and
the appellant also gave his evidence.
The
trial Magistrate did not find favour with the appellant's evidence in both
counts 1 and 2. The appellant was thus convicted in both counts.
In
respect of count 1 the appellant was sentenced to 6 months imprisonment of
which 3 months imprisonment were suspended for 3 years on the usual conditions
of good behaviour.
In
count 2 the appellant was ordered to pay a fine of U$80 or in default of
payment to serve 30 days imprisonment. The 3 twists of dagga were forfeited to
the State for destruction.
In
the reasons for sentence the trial Magistrate justified the sentence especially
in respect of count 1 as follows;
“The police have to
be respected so that they perform their duties without fear or favour. Offences
involving violence are quite high in this district and have to be put to stop.
Accused is serving on the other offence and hence does not qualify for
community service. A fine will not do any justice and it will trivialize the
offence. On the offence of possession of dagga a fine will do justice.” (sic)
Nature
of the appeal
The
appeal in respect of CRB MBE 287/16 (CA 9/16) which relates to the offence of
assault is in respect of sentence only. The appellant pleaded guilty to this
charge.
Broadly
the grounds of appeal in respect of CRB MBE 287/16, which are just repetitive,
are that the court aquo should have
considered a non-custodial sentence and at most impose the option of community
service.
In
respect of CRB MBE 286/16 (CA 7/16) the appellant's legal practitioner at the
commencement of the hearing of this matter abandoned the appeal in respect of the
conviction in count 1 which relates to assaulting or resisting a peace officer
in contravention of s 176 of the Code. This means that the appeal in count 1 is
now only in respect of the sentence of 6 months imprisonment of which 3 months
imprisonment were conditionally suspended.
In
our view the decision to abandon the appeal in respect of conviction in count 1
is proper. The evidence against the appellant is overwhelming. A proper
assessment of the appellant's own evidence clearly shows that he was not even
denying that charge.
As
regards count 2 on CRB MBE 286/16 the appeal is only in respect of conviction
which relates to possession of dagga and not the sentence of a fine of US$80 or
in default of payment 30 days imprisonment.
Merits
of the appeals
Before
dealing with the merits of the appeals in both matters it is important to
comment on the conduct of the appellant's legal practitioner Ms Mudisi.
During
the hearing of the appeals it was abundantly clear that Ms Mudisi was ill prepared to argue the appeals. She was a stranger
to her cases as it were. To put it mildly she was completely lights out. One
wonders whether this was a result of inexcusable inexperience or simply the
failure to prepare one's case or both.
After
we realised that Ms Mudisi was virtually
walking in darkness we inquired from her what the possible reason was. The
excuse she gave was that she had been asked at the last minute that very
afternoon by her senior in their law firm to proceed to this Court to argue the
appeals. Naturally we inquired why the so called senior counsel in their law
firm who should have prepared the heads of argument was unavailable. The answer
we got was dumbfounding. The answer we got was that the senior legal
practitioner had opted to attend to some disciplinary hearing at Zvishavane
Town Council instead of appearing in this Court.
It
is improper and unethical for the so called senior legal practitioner to behave
in such a manner. A disciplinary hearing cannot take precedence over a matter
set down in this court. Further, it is inexcusable for Ms Mudisi to have appeared before this Court and purport to argue
the appeals when she was virtually clueless as to what both matters entail. As
a result, she spent most of her time fumbling through the papers and aimlessly
gazing at the bench instead of addressing the mundane and simply issues we
sought clarity on. The court's valuable time was thus wasted.
Ms Mudisi
did not even know or appreciate what sentences were imposed in both matters!
For some strange reasons she insisted that the court aquo had ordered the sentence in one matter to run concurrently
with the sentence in the other matter. She did not even appreciate which
witnesses testified in respect of count 2 on CRB MBE 286/16 which relates to
possession of dagga or worse still where the dagga was allegedly found by the
detail who detained the appellant. In a nutshell she had simply not read the
record of proceedings. One is left wondering what sought of tuition Ms Mudisi received or is receiving in
her law firm.
In
order to curb this type of conduct and ensure that legal practitioners do not
blindly walk into this Court without the necessary preparatory work expected of
them, we shall in future seriously consider recommending disciplinary action to
be taken. The conduct of Ms Mudisi and the said senior legal
practitioner deserve censure. It is important that legal practitioners who are
officers of this Court and play a key role in the administration of justice
treat this Court with the respect and dignity it richly deserves.
We
now turn to the merits of the appeals.
The
grounds of appeal in respect of CRB MBE 286/17 are difficult to appreciate. No
useful purpose would be served by outlining the grounds of appeal. Instead a
brief comment on the grounds of appeal will drive the point home.
In
the first ground of appeal it is stated without any hesitation that police
officers are generally trained to mislead the court in giving evidence! It is
difficult to imagine that such an allegation is put down as a ground of appeal
by a legal practitioner who is an officer of this Court. Such a bold and
unsubstantial statement deserve no further comment. Suffice to say that the
evidence of any witness can be legitimately attacked or criticised on a factual
and objective basis.
The
second ground of appeal is equally confusing. It is simply stated that it was
impossible for the appellant to head butt the police officer in count 1 when he
was in handcuffs. The simple question is why is this impossible? Needless to
say that such a sweeping statement is not based on the evidence on record.
The
third ground of appeal is that the trial Magistrate should have played what is
described as an “investigatory role” in respect of count 1, whatever that
means. It is therefore not surprising that the appellant's legal practitioners
abandoned all these three grounds of appeal at the eleventh hour when the
appeal against conviction in count 1 was belatedly withdrawn. The point is
however made that it is trite that the grounds of appeal should be precise and
crisp.
The
heads of argument in these matters also deserve comment. They are unnecessarily
long, rumbling and repetitive. To cap it all they contain incorrect information
in relation to the sentence imposed by the court a quo in that it is said the sentence in one of the matters was
ordered to run concurrently with the sentence in the other matter. The
inference one is inclined to draw is that the legal practitioner who prepared
these heads of argument did not even bother to familiarise himself or herself
with the sentences imposed by the court a
quo, which sentences he or she sought to impugn.
The
appeal in respect of conviction in count 2 on CRB MBE 286/16 lacks merit. The
evidence adduced in the court a quo
is clear and straight forward. The police detail who found the dagga on the
appellant did so during a routine search of the appellant for purpose of
detaining him. This police officer is not the one who had arrested the
appellant at all. He was not part of the team of the three details who
struggled with the appellant before he was subdued. If indeed police officers
wanted to fabricate evidence against the appellant the arresting details would
have alleged that they found dagga on appellant's person. The court a quo rightly rejected the appellant's
version that dagga was planted on him by the police details in the charge
office. The appellant was properly convicted for possession of dagga which was
concealed in the pocket of his shorts underneath the work suit trousers.
We
lastly turn to the appeal against sentence in both CRB MBE 286/16 and CRB MBE
287/16 which relate to assault.
Ordinarily
in cases of assault the appropriate sentence depends on the severity of the assault
see S v Pedzisai 2002 (2) ZLR 560 (H) at 561 C – D.
The
appellant's contention is that the court a
quo should have considered a non-custodial sentence in both matters and at
most impose the option of community service.
In
the case of S v Dangarembwa 2003 (2) ZLR 87 (H) CHINHENGO J with the concurrence of
UCHENA J (as he then was) stated that in order to properly exercise its
discretion in assessing the appropriate sentence, in assault cases, a court
should inter alia consider the weapon
used, the seriousness of the injury inflicted, the nature or degree of violence
and the medical evidence. This should be juxtaposed with the mitigatory
factors.
In
both matters the appellant perpetrated the assault using his hands and the
injuries inflicted on both complainants are not very serious and were not life
threatening. Indeed, the appellant is a first offender.
If
one was to consider the assault in CRB MBE 287/16 in isolation, indeed it may
be true that the sentence imposed by the court a quo of 9 months imprisonment is unduly harsh. However, since the
appellant sought to have both matters consolidated this Court is now enjoined
to assess the overall moral blameworthiness of the appellant in both matters.
The impression one gets is that the appellant is a person of violent
disposition and a village bully.
The
other practical problem is that is now not feasible to order the appellant to
perform community service in respect of CRB MBE 287/16 even if we are of the
view at an effective custodial sentence is appropriate on CRB MBE 286/16.
The
general approach is that the courts should take a dim view where an assault is
carried out for purposes of resisting arrest and with the clear intention to
intimidate law enforcement agents. In the absence of special mitigatory factors
such conduct richly deserve a custodial sentence. See S v Masango HH-196-86 in
which an assault upon a policeman in uniform with a clenched fist on the chest
in public attracted a penalty of 3 months imprisonment.
The
appellant has no respect for the law. The police approached him in connection
with the assault he had perpetrated in CRB MBE 287/16. They were in uniform.
Instead of owning up to his wrongdoing he fled from the police and locked
himself up in his tuckshop. He armed himself with an axe threatening to kill
the police officers if they tried to arrest him. When he came out of the
tuckshop he was still unwilling to submit to the law. He decided to fight the
police officers in public. The presence of his village head did not even deter
him. The views expressed by KORSAH JA in S
v Chipere 1992 (2) ZLR 276 (S) at 281
F – G are apposite wherein the Learned Judge of Appeal said;
“In as much as the
law would consider as a very grave offence an assault by an ordinary person on
a member of the disciplined forces in execution of his duties, so also does it
consider assaults by law enforcement agents in the execution of their duties on
the ordinary man. In such cases unless there are special mitigatory factors,
custodial sentences are almost invariably imposed to deter both the offender as
well as would be offenders from creating animosity between the disciplined
forces and the citizenry.”
In
all the circumstances we cannot find fault with the trial Magistrate's overall
approach to sentence on both CRB MBE 286/16 and CRB MBE 287/16. The appellant
should simply get his just dessert.
It
is for these reasons that we dismissed the appeals in both matters.
Mafusire
J. agrees ………………………………….
Mutendi, Mudisi & Shumba,
appellant's legal practitioners
National Prosecution Authority, respondent's legal
practitioners
