Criminal
review
MAFUSIRE
J:
[1] Both
the conviction and sentence in this case offend against norms of
justice. It is imperative that this court should intervene.
[2] The
accused was convicted in the Regional Magistrate's Court with
attempted murder. The charge itself was demonstrably an overkill. The
circumstances disclosed nothing more than an assault.
[3] The
accused was sentenced to two years imprisonment, with a paltry six
months imprisonment being suspended on the usual condition of good
behaviour. Such a sentence was way over the top. Given the
circumstances, it served only to break the accused. He was a mere
eighteen year old rural village man. By all accounts, it was his
filial instinct, and a sense of duty to stop any further harm to
those close to him and, possibly to preserve family honour, that he
struck the wildly violent brother-in-law, the complainant, who had
been abusive towards his wife, the accused's sister; and was now
thumbing his father-in-law, the accused's father, in the presence
of some villagers, including the village headman.
[4] The
facts, from the State Outline, were these. The complainant and his
wife, Regina Jim [“Regina”]
were coming from consulting a prophet. The complainant was drunk.
Regina did not want to go home with him. She ran away to seek help
from the village head, one Emmanuel Mugwira [“Mugwira”].
The complainant followed her. At Mugwira's place, the complainant
raised a storm. Mugwira's efforts to calm him down were fruitless.
The accused, his younger brother, and their father, Some Jim [“Jim”],
arrived at the scene, shouting. They carried a knobkerrie. The
Outline does not say who in particular, carried the knobkerrie.
[5] There
was a slight variation in the facts. The State Outline said when Jim
and his sons arrived, Mugwira asked them to leave. But when canvasing
the essential elements, and in mitigation, this was not quite the
version that came out. The accused said following an exchange of
words, the complainant assaulted Jim.
[6] There
was another slight variation on what happened next. The State Outline
said after Mugwira had asked him and his sons to leave, Jim
approached the complainant and tried to strike him with a knobkerrie.
It said Jim fell down together with the complainant. Jim asked his
sons to help him. It was then that the accused allegedly took the
knobkerrie and struck the complainant twice on the head. The
complainant fell unconscious. Jim and his sons are said to have left
together. But, in court, this is not what was said to have happened.
The exchange between the court and the accused, in canvassing the
essential elements, was this:
“Q Correct
whilst thereat [i.e. at Mugwira's place] your father and
complainant had an exchange of words?
A Yes.
Q Correct
complainant
assaulted your father with clenched fists and booted feet?
A Yes.”
[7] There
was yet another variation in the facts. The State Outline said after
the accused had struck the complainant unconscious, Regina poured
water on him. They took him to his father. But in court the version
was as follows:
“Q Correct
the father demanded his daughter Regina?
A Yes
Q Correct
Regina joined your father and she cried for her child back?
A
Yes
Q Correct
complainant ran towards your father and
further
assaulted him?
A
Yes
Q
Correct you then assaulted the complainant with a knobkerrie on the
head?
A Yes”
[8] In
mitigation the court asked the accused why he had assaulted the
complainant in the manner alleged. His answer –
“He
was assaulting my father who
was not armed”
[all
emphasis by myself].
[9] The
accused pleaded guilty. But by such answers, the court should have
seen the red lights flashing. This was a case crying out for a plea
of not guilty to be entered in terms of section 272 of the Criminal
Procedure and Evidence Act, Cap
9:07.
It says:
“272 Procedure
where there is doubt in relation to plea of guilty
If
the court, at any stage of the proceedings in terms of section two
hundred and seventy-one and
before sentence is passed —
[a]
is in doubt whether the accused is in law guilty of the offence to
which he has pleaded guilty; or
[b]
is not satisfied that the accused has admitted or correctly admitted
all the essential elements of the offence or all the acts or
omissions on which the charge is based; or
[c]
is not satisfied that the accused has no valid defence to the charge;
the
court shall record a plea of not guilty and require the prosecution
to proceed with the trial:
Provided
that ...”
[10] The
trial court did not explore the variations in the facts. This
shortcoming is further illustrated by yet another exchange with the
accused. In this further exchange, the court was evidently trying to
establish 'intention' [mens
rea],
an essential ingredient for a charge of attempted murder. The
exchange went like this:
“Q Correct
by assaulting the complainant twice in the head with a knobkerrie you
intended to kill him?
A No
[my emphasis]
“Q Correct
by assaulting complainant twice in the head with a knobkerrie you
realised that there was a real risk or possibility that he might die?
A Yes”
[11] Evidently,
by its first question above, the court intended to establish 'actual
intention' [dolus
directus].
Having hit a brick wall, the court swiftly changed course and sought
to get the accused to admit 'legal' or 'constructive intention'
[dolus
eventualis].
It did.
[12] The
accused was not represented. The court did nothing to assist him. At
best, it was most perfunctory in its exploration of the essential
elements. At worst, it sought to trap him. How could the
unrepresented accused, an unsophisticated young peasant farmer, have
been expected to decrypt that the court's second question above
sought to establish dolus
eventualis?
Did he really know what he was saying “Yes”
to?
[13] The
law behoved the learned magistrate to have taken the version of facts
most favourable to the accused. His answers depicted some possible
defences. It was incumbent upon the court to have made an effort to
decipher those defences.
[14] In
a nutshell, the accused's defence was that he assaulted the
complainant because he was assaulting his father. He was not saying
his assault of the complainant was out of revenge. Rather, it was to
stop the complainant. The court should have deduced the defence of
person, as defined in section 253 of the Criminal Law [Codification
and Reform] Act, Cap
9:23
[“the
Code”],
or the defence of necessity, as contemplated by section 263 of the
Code.
[15] In
the defence of person in terms of section 253 of the Code, a person
is excused if he commits a crime whilst, among other things,
defending another person from an unlawful attack. An 'unlawful
attack' is defined to mean unlawful conduct which endangers a
person's life, bodily
integrity
or freedom [my
emphasis].
The complainant's assault on Jim had been on-going. It was an
unlawful attack. At the very least, it endangered Jim's bodily
integrity.
[16] According
to section 253, the requirements for the defence of person, as it
relates to the defence of another, are as follows:
(i)
That the unlawful attack had commenced, or was imminent. In this case
the attack had commenced and was on-going.
(ii)
That the accused's conduct was necessary to avert the unlawful
attack, and that he could not otherwise escape from, or avert the
attack. The accused's striking the complainant in the manner he
did was to stop the complainant from continuing to assault his
father, Jim. Obviously the second rung of this requirement does not
apply to his situation.
(iii)
That the means used to avert the unlawful attack were reasonable in
the circumstances. A knobkerrie is not an inherently dangerous
weapon. Admittedly, the accused's blows landed on the
complainant's forehead, a rather delicate part of the body.
Although the medical report suggested that severe force was used, and
that a permanent disability was likely to occur, it also ruled out
the likelihood of any danger to life. Furthermore, the accused
delivered only two blows. These inflicted no more than a cut and
severe contusion [or bump] on the forehead.
(iv)
That any harm or injury caused by the accused's conduct was to the
attacker and not any third party; and that the harm was not grossly
disproportionate to that liable to be caused by the unlawful attack.
Weighing proportions in matters of this nature calls for value
judgment. Nobody can say how far the complainant might have gone in
assaulting Jim if the accused not intervened. Therefore, without a
proper investigation, it cannot be said the cut and the contusion on
the complainant's forehead were disproportionate to the harm the
complainant was likely to inflict on Jim.
[17] According
to section 263 of the Code, for necessity to be a complete defence,
the requirements are broadly similar to those for the defence of
person. They are these:
(i)
That the harm which the accused sought to avoid would have resulted
in, among others, the death or serious bodily injury to himself or
another person;
(ii)
That the accused believed on reasonable grounds that the harm had
started or was imminent;
(iii)
That the harm did not arise through his own fault;
(iv)
That he believed on reasonable grounds that his conduct was necessary
to avoid the harm and that there was no other feasible way of
avoiding it;
(v)
That by his conduct he did no more harm than was reasonably necessary
to avoid the harm and that the harm he himself inflicted, was not
disproportionate.
[18] Undoubtedly,
the accused's conduct seemed to eminently fit all those
requirements. The bottom line is that the court did not investigate
at all.
[19] Even
if in spite of all the foregoing, the court still felt the accused
was guilty of attempted murder, and beyond any reasonable doubt for
that matter – which would be incredible – it should have noted
that there were weighty mitigating circumstances. Among other things,
the accused was provoked. Here was a brother-in-law who not only had
been abusive to his wife, Regina, the accused's own sister, but was
also now pounding his father-in-law, Jim, the accused's father.
[20] According
to section 238 of the Code, whilst provocation is not a defence to a
crime other than murder [to which it is a partial defence if certain
conditions are met], nevertheless the court may regard it as
mitigatory when assessing the sentence.
[21]
Furthermore, in terms of section 218 of the Code, diminished
responsibility operates in mitigation of sentence. It is diminished
responsibility if, among other things, at the time when the accused
commits a crime, his capacity to appreciate that the nature of his
conduct is unlawful, is diminished on account of, among other things,
acute mental or
emotional stress.
The court takes into account diminished responsibility when imposing
sentence. In the present case, it must have been emotionally
stressful for the accused to witness the complainant assaulting those
close to him.
[22] The
accused should have simply been charged with assault as defined in
section 89[1] of the Code. If the State had insisted on proceeding
with the charge of attempted murder, then after canvassing the
essential elements, and if in spite of what is said above, it was
still bent on convicting, the court could have passed a verdict of
guilty of assault. In terms of the Fourth Schedule to the Code, as
read with section 275, assault is a permissible verdict to attempted
murder.
[23] The
prescribed penalty for assault in terms of section 89[1] aforesaid is
a fine up to, or exceeding level fourteen [$5,000], or imprisonment
for a period not exceeding ten years, or both. The range is quite
wide. The top end is quite steep. But unquestionably, this is
designed to cater for all manner of assaults, from the very minor
ones, to those very serious assaults as would cause grievous bodily
harm. In no way should the court a
quo,
if it felt it safe to convict, have considered a custodial sentence.
[24] In
light of what is said above, the court a
quo
should not have convicted the accused on either attempted murder, or
common assault. In addition, I certainly consider it quite unsafe to
certify the proceedings as being in accordance with real and
substantial justice, as required by section 29 of the High Court Act,
Cap
7:06.
This is so for yet another significant oversight by the court a
quo.
In terms of section 163A of the Criminal Procedure and Evidence, Cap
9:07,
the magistrate is obliged to inform an accused person of his right to
legal representation, and to endorse on the record the fact that he
or she did so inform the accused. The record in this matter has no
such endorsement. All that is there is:
“Accused : Daniel
Jim
: In
person
: Not
legally represented”
[25] Yet
section 163A is couched in peremptory terms. It says:
“[1]
At the commencement of any trial in a magistrates court, before the
accused is called upon to plead to the summons or charge, the accused
shall
be informed by the magistrate of his or her right in terms of section
191 to legal or other representation in terms of that section.
[2]
The magistrate shall
record the fact that the accused has been given the information
referred to in subsection [1], and the accused's response to
it.”[my
emphasis]
[26]
In this judgment, without having researched the point, I will not go
so far as to rule that such an omission is by itself fatal to the
entire proceedings. However, coupled with all the other short-comings
noted above, the proceedings of the court a
quo
cannot stand.
[27] The
accused was sentenced on 12 January 2018. At the time of this
judgment he had already served more than a month in jail. There is no
benefit to be served by remitting the record back to the court a
quo
for a trial de
novo
or for the correction of the anomalies noted above because the
possible worst outcome for the accused is a conviction on assault,
for which, because of the overwhelming mitigating circumstances,
including the fact that he was only eighteen years old at the time of
the offence; was married; and was a first offender, no custodial
sentence would be justified. The accused is entitled to his immediate
release.
[27] In
the circumstances, the conviction of the accused in the court a
quo
is hereby quashed. The sentence imposed is hereby set aside. The
Registrar is directed to immediately execute the warrant of
liberation to enable the accused to be released forthwith.
22
February 2018
Hon
Mawadze J: I agree ____________________
