S v Brown & Ors (CRB 10 of 2013) [2015] ZWHHC 362 (5 March 2015)

1 HH 362 -15 CRB 10/13 THE STATE versus TENDAI BROWN and SHEPHERD MUTEMAMOMBE and NHAMO MUTEMAMOMBE HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 25, 26, 27, 28 February 2013 & 6 March 2015 ASSESSORS: 1. Mr Chakuvinga 2. Mrs Shava Criminal Trial M Manhamo, for the state N Munetsi, for 1st accused S Zvavanoda, for 2nd accused R Zinhema, for 3rd accused MUSAKWA J: The accused persons pleaded not guilty to contravening s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9: 23]. It is alleged that on 24 October 2010 and at Riverview Farm, Bindura the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that their conduct might cause death, caused the death of Costa Domingo by striking him with an empty bottle and a piece of wood on the head and stabbing him in the chest with an iron rod and assaulting him all over the body with clenched fists thereby inflicting injuries from which Costa Domingo died on the same day. The charge is inelegantly drawn. The state is enjoined to allege what it can prove. It should not be difficult because the prosecutor prepares the indictment from the evidence in the docket. The deliberate inclusion of damning allegations and alleging all conceivable manner of assaults as if there are witnesses to prove that should be avoided. HH 362 -15 CRB 10/13 The second and third accused and the deceased were neighbours. On the fateful day the deceased went to the accused’s residence where an altercation ensued. The state sought to prove that the first accused then assaulted the deceased all over the body with clenched fists and also struck him with an empty bottle on the head. The second accused joined in and assaulted the deceased with clenched fists. The deceased escaped and was waylaid by the third accused who stabbed him with an iron rod in the chest and also struck him with the same rod. The deceased then died instantly. The first accused’s defence is to the effect that he arrived at the residence of the co- accused around 5 p.m. when he finished work. Thereafter the deceased also arrived and hurled obscenities at the other accused. The deceased was drunk. The first accused tried to lead him away but he was struck with a fist and he fell down. As he tried to get up he was stabbed on the back. The second and third accused and neighbours intervened and the deceased was led away. The first accused subsequently left for his residence. He was later arrested in the early hours of the following morning. The second accused’s defence is to the effect that he intervened to quell the scuffle between his brother, the third accused and the deceased. This was after he realised that the third accused’s right toes were bleeding profusely. He noted that the iron bar had pierced the third accused’s right foot. He never assaulted the deceased. The deceased was heavily drunk. On the other hand the third accused claimed that he wrestled with the deceased. He was injured on the right leg. As they wrestled two people who included the deceased’s son came to his rescue. That is when he escaped. He was pursued and he sought refuge at some grounds until the following morning. He went back home and found no one. As he went to look for his family he was then arrested. That is when he learnt of the deceased’s death. Doctor Lawrence Hlatshwayo who conducted the autopsy on the deceased’s remains was the first to testify. He obtained a degree in medicine and surgery (MbChB) from the University of Zimbabwe in 2006. He has worked at Bindura Provincial Hospital as a general practitioner. He noted a depressed skull in the occipital region and a wound on the left side of the chest. The occiput is the back part of the head. The chest wound was ill-defined. The autopsy was externally conducted. A depressed skull means a fracture where the skull enters brain tissue. There was blood around the wound. That means there was damage HH 362 -15 CRB 10/13 to brain tissue or damage to the blood vessels. A blunt or heavy object probably caused the injury. The iron rod produced as an exhibit could have inflicted the wound. The doctor was a bit shoddy in the conduct of his duties. This was exposed by the defence during cross-examination. For example, he mixed up the deceased’s weight and length. More importantly, he did not detail his findings in the post-mortem report apart from simply stating his conclusion. However, he was redeemed by the fact that he had kept notes with which he refreshed his memory. The danger was that if he was unavailable the case would have gone unclarified. He genuinely acknowledged his mistake and impressed as one who could recall the case. This was particularly so when he pointed out that it was a remarkable case on account of the injury. Kudzanai Kamulani a neighbour of the third accused testified that she was at home washing some plates outside when a girl passed by crying. She went to the back of the house and saw the first and third accused standing without shirts. The girl who had just passed had come from the direction where the accused were. This was not far from her residence. She got closer and asked the accused why they were fighting. There was no response. The second accused was seated on the veranda. She saw the deceased lying on the ground. She went and reported to an officer called Chimupini. Thembiwe Maphosa the investigating officer testified that when she went to the scene during the course of the morning the deceased had already been taken to hospital. They managed to locate the first and the third accused. The second accused had fled. The first and third accused were identified by Chimupini. They were in the compound at a place where people were imbibing beer. The second accused was later arrested in Madziva. The first and second accused’s warned and cautioned statements were confirmed at court. During indications she saw a shattered bottle. The third accused indicated an iron rod that was in the toilet. The rod was protruding from the toilet pit. The second accused indicated two hoe handles. During cross-examination she stated that there was blood on the rod. The summary of evidence in respect of Tambudzai Muropa was admitted. The state produced the confirmed warned and cautioned statements recorded from the first and second accused persons. There was no objection from the defence although the accused sought to claim during the course of their respective cases that they did not freely and voluntarily give the statements. HH 362 -15 CRB 10/13 The first accused testified in his defence. He confirmed that the co-accused are nephews. He used to reside with them. On the day in question he went to work. Having not eaten he went to Riverview Farm where he met the third accused. Upon arrival he saw the deceased who was making an issue about his daughter who had been impregnated. Although the first accused said he did not see the deceased holding anything, in another breadth he said the deceased was armed with a knife. As the deceased shouted he charged at the other accused. The third accused asked the first accused to restrain the deceased. When the first accused got hold of the deceased the latter asked if he had been hired. The deceased then struck him on the right cheek and he fell down. When he got up he was struck with a knife on the back. The first accused showed the court a visible scar on the back. The first accused escaped as the deceased was being restrained. He informed the other accused that he had been stabbed. The deceased appeared as if he was drunk. The first accused went to the third accused’s residence. He was given a T-shirt by the third accused as he had used his to wipe away some blood. There was a young girl of about 10-12 years. Thereafter he proceeded home as he was no longer feeling well. Around 2 a.m. he was taken by a member of the neighbourhood watch who informed him about the deceased’s death. The first accused stated that he made indications relating to the pl