S v Gara (55 of 2023) [2023] ZWCHHC 49 (7 November 2023)

1 HCC55/23 CRB97/23 THE STATE versus HUMPHREY GARA IN THE HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 25 October 2023, 1, 6 and 7November 2023 Assessors: Mr Manyangadze Mr. Kamanga Mr. T. H. Maromo for the State Mr. J. Mangeyi for the Accused Criminal Trial BACHI MZAWAZI J: Introduction A seventeen-year-old teenager died of five gunshot wounds, one in the head, three in the thorax region and one on the thigh at the hands of the accused person on the 9th of May 2020 at house stand number 732 Rudland, Orange Groove Chinhoyi. An arrest was made close to five months later, on the 28th of September 2020 resulting in murder charges in contravention of section 47(1) of the Criminal Law Reform and Codification Act [Chapter 9:23] being preferred on the accused. Interestingly, bail was granted on the following day on initial remand. Brief Factual Narrative The facts as borne by the summary of the State case are that on the night in question the deceased who was known to the accused’s mother in-law made his way into the homestead uninvited in the middle of the night. Accused who was staying at the same premises with his wife and a newly born baby had retired to bed. The mother-in-law and her 12-year-old grandson were in the lounge watching late night television. It is alleged that the mother was startled by some noises in the kitchen which she investigated but found nothing amiss. She then later discovered her bedroom door ajar, ransacked and her personal belongings scattered all over the place and immediately suspecting an intruder raised alarm to his daughter and son in law. HCC55/23 CRB97/23 The two sprang into action and in the company of the mother-in-law moved from room to room in search of the intruder whom they found hiding in the pantry. Upon accosting the home invader, it is said that the deceased immediately started calling the mother- in- law’s name, but the accused quizzed him to say his name which he did not. The accused then shot him at intervals each time he failed to get a response after repeatedly asking for the deceased’s name. Even after the second shot the deceased had asked the mother-in-law to please wait a bit. The State outline ends with the accused securing the pantry and making a police report the following morning. Evidence Produced by Consent and in Support Thereof The adduced post mortem report, which departed materially from the full detailed version normally compiled by pathologists, outlined the observations made as, lacerations on the forehead, right wrist, upper chest right shoulder and left thigh. The doctor concluded that the cause of death was cardiac arrest as a result of congested blood in the thorax area. In the State papers, there was mention of an explanatory note that was made by the said doctor accompanying the post-mortem report, but was never found nor produced. As a result the State called Doctor Maponga who in his oral evidence admitted that the lacerations were deep penetrating wounds caused by gunshots and the blood that accumulated in the heart causing the cardiac arrest was from those observed wounds. It is important to note that the post-mortem report had been produced by consent as exhibit 3 in terms of sections 276, 278,279 and 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] alongside, the sketch plan as exhibit 1, the confirmed warned and cautioned statement as exhibit 2 and the Ballistic Forensic report as exhibit 4. The initial witness line up by the State consisted of eleven people but oral evidence was led from five including the doctor. The summarised evidence of the rest was admitted into evidence as is. Accused’s defence in –chief and factual analysis The accused person denied the charge and raised a two-pronged defence, of the self and his family members, that is, third parties. Whilst he agrees in essence with most of what was stated in the above State outline, his point of departure is that the shooting took place in a passage not the pantry. Further, that he armed himself with his own licenced pistol after responding from his mother-in law’s call but did the house door to door inspection alone not HCC55/23 CRB97/23 in the company of his wife and his mother-in law. He also indicated that the deceased never uttered any words even after asking him to do so on several occasions. He then mentioned that the deceased was armed with a garden fork, knife, and a machete. The accused adopted his defence outline and agreed that it be taken into account as evidence over and above of his oral defence in court. The court did not help but notice material discrepancies in the accused’s defence outline, evidence in chief and under cross examination, as well as the statements given to the police, to be analysed at a later stage. The State Evidence and Analysis Nothing much came from the State’s first three witnesses. They all gave initial statements to the investigating team which they signed when events were still fresh but then departed from those in their testimony in court. Nora Alice Muzondo was not a satisfactory witness, because of her relationship as the mother –in –law her evidence in court was tailored to suit the accused’s new defence in court. She then parroted that deceased was shot in the passage yet she said she was faraway and could neither see nor hear what was transpiring between the deceased and the accused. There was a marked departure from her written statement on record stating that all three adults did the manhunt and found deceased in the pantry which exactly tallied with State’s summary of the case. Hessel Kondo, the police officer who was first to attend the scene on the night in question’s evidence, leaves a lot to be desired and actually questions the integrity of the police. Firstly, in a shooting incident she came alone under no escort. Secondly, as a trained police officer she did not observe the crime scene to see where the alleged shooting took place and any signs of struggle, blood traces or trails. All she could relate to the court is that she saw a corpse holding on to weapons. She failed even to explain how the dead body clung to a machete after being shot so severely and severally. She then attested that she found the deceased’s body in a sitting position with the back resting on something but with a satchel strung on the dead body. Astoundingly, she could see some weapons in a bag at the back of the deceased which included a knife and garden fork. She never said that she opened the bag but surprising she claimed to have seen these additional weapons. Testing her evidence of seeing a knife against HCC55/23 CRB97/23 that in the accused’s admitted defence outline, annexure C, on record, the accused said a knife was thrown at him necessitating his shooting in defence. In self- contradiction accused after hearing the witness testimony then in his submissions and oral evidence talks of an attempt to throw the knife. Kondo proved not be a credible witness. In her written evidence she did not say that she responded to a crime scene call only to guard a corpse but to attend scene and record findings. She even mentioned compiling a report afterwards. In court she made an about turn after a leading question from Mr Mangeyi, counsel for defence and she stated that her only mandate was to secure the body. She then reverted to her original story when the court put her written statement to her for further explanation. This witness’ evidence only serves to point out that the deceased was found in the pantry already dead and bleeding. The third witness, also a police officer could not explain why and how a dead body could still hold on to weapons if at all he had brought them in the first place and had intended to use them because that was what this witness was eager to say. He too had magical or supernatural eyes which could see weapons inside a bag pack at the back of a dead body without inspecting the contents. To the court’s surprise the second police officer stat