S v Chitsungo (228 of 2023) [2022] ZWHHC 2030 (30 May 2022)

1 HH 228-23 CRB NO. 1/22 THE STATE versus PANASHE CHITSUNGO HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 17 March & 30 May 2022 Criminal Trial Assessors: Mr Barwa Mr Chimonyo Ms A Chogumaira, for the State C Chingwe, for the accused MUREMBA J: The accused pleaded not guilty to the charge of murder as defined in s 47(1) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). It is alleged that on 15 October 2020 at Mafetu Village, Chief Nembire, Mt Darwin, the accused unlawful and intentionally caused the death of Chamunorwa Mhembere by striking him with a brick on the left side of the head thereby causing injuries from which he died. To prove its case, the State led viva voce evidence from Tadius Gadha and the evidence of 3 other witnesses: namely Fine Kanyambira, Irene Mhembere and Sermon Gumbo was formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The accused person was the sole witness for his case. The State tendered four exhibits namely, a full brick that the accused used in striking the deceased; the weight certificate for the brick which states that the brick weighed 2,680 kgs; the post mortem report which states that the deceased died due to brain injury and depressed skull fracture with subdural haematoma as a result of severe blunt trauma; and the accused’s confirmed warned and cautioned statement wherein he admitted to having struck the deceased with a brick. The accused stated that he did this in a bid to restrain the deceased who was assaulting his nephew, Fine Kanyambira. HH 228-23 CRB NO. 1/22 From the evidence that was led during trial, it is common cause that at the material time the accused was staying with his cousin Fine Kanyambira at Fine Kanyambira’s homestead in Nembire area in Mount Darwin. On 15 October 2020, the accused washed his sneakers and put them on the washing line to dry. The sneakers then went missing. The accused and Fine Kanyambira then noticed some prints of slippers at the washing line area. They followed the prints up to the deceased’s home in Mafetu Village. They saw the deceased standing with some people at a home that is near to his home. Fine Kanyambira knew the deceased, but the accused did not know him. The accused and Fine Kanyambira approached the people who were standing with the deceased and Fine Kanyambira asked to speak to the deceased aside. The deceased was standing with Irene Mhembere and Tadius Gadha. Apparently, they were at the funeral of Tadius Gadha’s mother in law. The deceased was Tadius Gadha’s father-in-law’s young brother. Irene Mhembere was the deceased’s sister. When the accused and Fine Kanyambira asked to speak to the deceased aside, Fine Kanyambira then confronted the deceased about the stolen sneakers. He told the deceased that they had tracked the prints of some slippers that had led them to his (deceased’s) home. He then asked the deceased to produce the sneakers. The deceased who was wearing some sneakers, denied having stolen the accused’s sneakers. The sneakers the deceased was wearing were not the accused’s stolen sneakers. When the deceased denied any knowledge of the stolen sneakers, Fine Kanyambira demanded that they go to the police station. An altercation then ensued as the deceased was refusing to go. In the middle of the altercation, the accused picked up a brick and struck the deceased once on the head with it. The deceased fell down and died instantly. The accused and Fine Kanyambira fled from the scene. However, the accused went to the police station the next day and surrendered himself. The accused explained that he fled from the scene after striking the deceased because of the deceased’s relatives who upon seeing the deceased fall, picked up some bricks and started advancing towards the scene. He said that he fled out of fear that they would assault him. What is in dispute is what happened during the altercation which resulted in the accused striking the deceased with the brick. Unfortunately, all the three State witnesses who were at the scene together with the accused person gave varying accounts. Each witness had its own version. Fine Kanyambira said that when he requested the deceased to accompany them to the police station, he got angry, removed his jacket and tried to strike him with a fist. The accused then picked up a brick, threw it and struck the deceased on the head. The HH 228-23 CRB NO. 1/22 deceased fell down and died. Since Fine Kanyambira’s evidence was formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act, he was not cross examined by the defence in order for him to fully explain what prompted the accused to pick up the brick and strike the deceased. Irene Mhembere said that when Fine Kanyambira and the accused asked to speak to the deceased aside, they moved with him for about 20 metres away from her. She said that she heard the accused demanding his shoes from the deceased. She said the accused then picked up a brick and threw it at the deceased who then fell down. This witness did not even explain the circumstances which resulted in the accused picking up the brick and striking the deceased. Since her evidence was also formally admitted in terms of s 314 of the CPEA, the defence never had the opportunity to cross examine her. Tadius Gadha in his summary of evidence said that when the deceased denied the allegations of stealing the sneakers, a misunderstanding ensued. The deceased then grabbed Fine Kanyambira who pushed him away. The accused then picked up a brick and struck the deceased who fell down and died on the spot. However, when Tadius Gadha testified in court he said that when the misunderstanding occurred between the deceased and his accusers, the deceased said that these young men wanted to belittle him. He then pushed the accused and the accused fell down facing the deceased. He fell on his buttocks and used his elbow to support himself. The accused then picked up a brick and threw it at the deceased. Asked if the accused threw the brick as he was seated or standing, Tadius Gadha said that he did not see because he (Tadius) had at that time moved behind Fine Kanyambira. Tadius Gadha clearly departed from the version he gave to the police. That the deceased had pushed the accused and that the accused had fallen down, is something that he said for the first time in court. To the police he said that the accused picked up the brick and struck the deceased because the deceased had tried to grab Fine Kanyambira. The State counsel did not ask her witness to reconcile his two versions which were seemingly conflicting. Even the defence counsel did not cross examine the witness on this conflicting evidence. So, as it is, we do not know which version of Tadius Gadha’s evidence to believe. On the other hand, the accused maintained his defence through and through right from the warned and cautioned statement to the defence case that he acted in defence of his nephew Fine Kanyambira who was under attack by the deceased. He said that the deceased had grabbed Fine Kanyambira’s arms and twisted them. The deceased had now raised his hand intending to strike Fine Kanyambira near the groin where he was operated on. The HH 228-23 CRB NO. 1/22 accused said that the wound had not yet healed. The accused said that he realised that Fine Kanyambira could be injured. He said that he rushed to pick up a brick which was on the ground and threw it at the deceased so that he would let go of Fine Kanyambira. He said that when he threw the brick, he did not aim at any body part of the deceased. He just wanted the deceased to let go of Fine Kanyambira. However, under cross examination he said that he threw the brick with the inetention of hitting the deceased’s hand that was raised in the air intending to strike Fine Kanyambira. The accused later changed and said that he was not too sure of where he intended to strike the deceased. He said that the deceased was way older than him and he had no way of restraining the deceased hence he struck him with a brick. Apparently, the deceased was 42 years old whilst the accused was 20 years old. Fine Kanyambira was around 38 years old. The accused said that when he threw the brick, he was about 8m away from the deceased. This cannot be true. At such a distance he could not have struck the deceased with a full brick weighing 2.6 kg. The accused must have been closer than 8m. With all the contradictions made with regards to the circumstances which resulted in the accused striking the deceased, the court does not know which witness told the truth of what happened. However, we are able to make certain deductions from the evidence led. The deductions are as follows. When the accused picked up the brick and struck the deceased, he (accused) was not under attack by the deceased. The deceased never pushed the accused and caused him to fall down as Tadius Gadha wanted the court to believe. The other State witnesses never said it and neither did the accused person say it. If this is what had happened, we do not see why the accused would not have said that he struck the deceased in self-defence after he had been pushed. Besides, Tadius Gadha in his statement to the police never spoke about the deceased having pushed the accused. It is something that he said for the very first time in court. The other deduction that we make is that the deceased had attempted to attack Fine Kanyambira, but he did not succeed. We say this because Fine Kanyambira said that the deceased had tried to strike him with fists and that is when the accused picked up a brick and threw it at the deceased. Fine Kanyambira never said that the deceased grabbed him and twisted his hands as the accused wanted the court to believe. Even Tadius Gadha never spoke about the deceased grabbing and twisting Fine Kanyambira’s arms. It appears to us therefore that at the time the accused picked up the brick and struck the deceased, the deceased was not HH 228-23 CRB NO. 1/22 holding anyone. He was just being aggressive towards Fine Kanyambira as he was refusing to go to the police. Mr Chingwe for the accused submitted that whilst the State had proved the actus reus of the accused of having thrown the brick that caused the death of the deceased, it failed to prove that the accused had the men’s rea to kill the deceased. He further submitted that the mere fact that death then ensued does not necessarily mean that the accused intended to kill the deceased. For this proposition he made reference to the case of State v Mugwanda [2002] ZWSC19, wherein CHIDYAUSIKU CJ (as he then was) held that it was an erroneous conclusion to hold that because death ensued then accused person had positively intended to bring about the death. See also State v Sigwahla 1967 (4) SA 556 (A). We do agree with this proposition. As was correctly submitted by both counsels, what is important is for the court to examine the accused’s state of mind when he picked up the brick and struck the deceased. In terms of s 47(1) of the Criminal Law Code, either the accused must have intended to kill the deceased or he realised that there was a real risk or possibility that his conduct could cause death, but still continued to engage in that conduct despite the risk or possibility. In State v Rowayi Chimene HH 721/15 at p 7, it was held that in order to arrive at a proper finding as to the appellant’s state of mind, it is important to know what facts can be relied on as indicating that state of mind. In State v Mpofu (C 15/03) [2005] ZWSC 124 @ 8, it was held that an attack directed at vulnerable parts of the body of the deceased such as the head can only suggest that the accused intended to kill the deceased. In State v Kizito Mutsure HH 458/18 @ 18 it was held that:- “It is the totality of the evidence which must be considered and a finding of guilt or innocence should not be based upon a consideration of facts treated in isolation but collectively.” G Feltoe in his book, A Guide to the Criminal Law in Zimbabwe, 3rd Ed, 2004 at p 104 states that intention in its simplest form entails that one should have desired death or rather death should be the aim and object of the person. He further states that on the other hand, reasonable foreseeability, which is another angle of intention, entails that death is not the aim and object, but in the process of engaging in some activity one foresees death as a substantially certain result from the activity and proceeds regardless of consequences. In the circumstances of this case both counsels correctly submitted that nothing shows that the accused intended to kill the deceased. When the accused and Fine Kanyambira confronted the deceased, they had hoped that he would be cooperative. They were not armed. HH 228-23 CRB NO. 1/22 When the deceased refused to cooperate, they invited him to go with them to the police station, but he became aggressive. It is at that juncture that the accused picked up a brick and struck him once on the head. Whilst the deceased was struck on the head, the State did not prove that when the accused threw the brick in the direction of the deceased, he was actually aiming at the head. None of its witnesses said so. Therefore, it cannot be said with certainty that when the accused threw the brick at the deceased, he desired death to occur. Again, from the way the State witnesses explained how the accused struck the deceased, it is difficult to say that the accused realised that there was a real risk or possibility that his conduct could cause death and continued to engage in that conduct despite the risk or possibility. We say this because when the accused person struck the deceased, it happened in the heat of the moment. The State witnesses gave conflicting versions of what happened which resulted in the accused picking up the brick and throwing it at the deceased. Because of the conflicting testimonies, it is difficult to say what exactly was going on when the accused picked up the brick and struck the deceased. Consequently, is difficult to say that the accused foresaw the death of the deceased and proceeded with his activity regardless of the consequences. We are not even satisfied that when the accused struck the deceased, he was acting in defence of Fine Kanyambira who was under physical attack by the deceased. If this is what had happened, Fine Kanyambira would have said it in his evidence. It appears to us that the accused is a person who just acted in the heat of the moment when the deceased turned aggressive upon being invited to go to the police. It was not because the accused had actually grabbed Fine Kanyambira. As was submitted by the defence and correctly conceded by the State, when the totality of the evidence is considered, what comes out is that when the accused picked up the brick and struck the deceased, he was negligent in his conduct. Looking at the facts cumulatively, it can be safely said that the accused was careless. On this basis we will convict him of culpable homicide because he negligently failed to realise that death could result from his conduct. Before we conclude this judgment, we are compelled to make some remarks on formal admission of evidence in terms of s 314 of the Criminal Procedure and Evidence Act. It is appropriate to have evidence formally admitted if doing so will narrow down the issues in contention. The idea is to have evidence that is not disputed by the other side adduced by consent without the need for the witnesses to take the witness stand and testify. The evidence is accepted by the court as it is because it is not contested. So, evidence which is formally HH 228-23 CRB NO. 1/22 admitted is conclusive. In the circumstances of the present case, there was a dispute on the circumstances surrounding the striking of the deceased with the brick by the accused. All the three State witnesses and the accused had conflicting evidence on this issue, yet despite this, the State counsel had this evidence formally admitted. It is surprising that the defence consented to have the evidence formally admitted. This goes on to show that both counsels had no appreciation of the issues that were common cause and those that were disputed. Conflicting evidence from various witnesses cannot all be formally admitted. If an issue that is material for the determination of the case is disputed, viva voce evidence has to be led to enable the other side to cross examine the witness. In writing the judgment the court will then assess the evidence and determine the disputed issue. The State therefore ought to have led evidence from its witnesses in respect of the circumstances the accused struck the deceased since the evidence was not common cause. Each State witness needed to give viva voce and be cross examined by the defence. This would have enabled the court to determine which version was correct. In view of the foregoing, the accused is found not guilty and acquitted of the charge of murder, but is found guilty of culpable homicide as defined in s 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Sentence In mitigation we considered that the accused is a 23-year-old first offender. At the time that he committed the offence in 2020 he was 21 years old. As a youthful first offender he deserves to be treated with leniency. The objective is to rehabilitated him. As a youthful offender he needs another chance in life. It could be that he was influenced by immaturity and lack of experience of life when he committed the crime. He did not pose to think about the likely consequences of his intended action. The accused is an orphan who lives with an aunt who was involved in a motor vehicle accident. The aunt is dependent on the accused for her livelihood. After committing the crime, the accused surrendered himself to the police after he had committed the offence. He took responsibility for what he had done. This shows that he was remorseful for what he did. It is further mitigatory that this is an offence which happened in the heat of the moment when the deceased was being aggressive and refusing to go to the police. The accused and his cousin strongly suspected that the deceased had stolen the accused’s sneakers from the washing line. The shoe prints that the accused and his cousin HH 228-23 CRB NO. 1/22 followed from the washing line led them to the deceased’s home. There was reasonable suspicion that the deceased was the person who had stolen the accused’s sneakers. In aggravation we have considered that the accused stands convicted of a very serious offence of culpable homicide. Life was unnecessarily lost over some stolen sneakers. The accused ought to know that resorting to violence does not solve problems. In this case, the accused overreacted and his reaction was not called for. Although the deceased was being aggressive, he had not physically harmed anyone. Instead of trying to force the deceased to go with them to the police, the accused and his cousin should have simply proceeded to the police to report him. The accused used a dangerous weapon and struck the deceased once on the head and the deceased died instantly. This shows that the accused used excessive force and struck the deceased on the head which is a delicate part of the human body. A sentence of 3 years that was suggested by the defence counsel will certainly be repulsive to society considering the circumstances surrounding the commission of the offence. Considering the circumstances of the case, the mitigatory factors, the aggravatory factors and the age of the accused, a sentence of 10 years’ imprisonment with a portion suspended on condition of future good behaviour will meet the justice of the case. The accused is thus sentenced as follows: “10 years’ imprisonment of which 3 years’ imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving violence on the person of another and for which upon conviction he is sentenced to imprisonment without the option of a fine. Effective 7 years’ imprisonment.” The National Prosecuting Authority, the State’s legal practitioner Guni & Guni Legal Practitioners, the accused’s legal practitioners