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, ...
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.
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 twenty (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?
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. The complainant went out first while
the appellant followed. From there, they went to the charge office where the
appellant instructed Constable Kotyoka to give the 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 the 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 overnight.
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 criticisms 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. The 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…,.
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 the
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 the
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 the
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. The 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, 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.”
Inspector
Charles 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. Inspector Charles Bendembe
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 the appellant
that the complainant was resisting orders culminated in him doing what he did.
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 safeguard
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.
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 he
had struck the 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.
