S v Gutsa (CRB 155 of 2016; HH 791 of 2016) [2016] ZWHHC 791 (29 November 2016)

1 HH 791/16 CRB 155/16 THE STATE versus TATENDA GUTSA HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 29 September, 30 September 2016 and 29 November 2016 Criminal Trial T Kasema, for the State N Tsarwe, for the defence (Prodeo) CHITAPI J: The accused was charged with murder as defined in s 47 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. The indictment alleged that on 29 July, 2015 at Good hope Farm, Concession, the accused acting with intent to kill or realizing that there was a real risk or possibility that death might result from his conduct, unlawfully struck the deceased Simbarashe Madziva on the head with a wooden stick thereby causing injuries from which Simbarashe Madziva died on 30 July, 2015. When the charge was put to the accused, he responded, “I admit the charge”. Counsel for the accused indicated that the response by the accused did not accord with his instructions and he sought leave to clarify the accused’s admission. Leave was granted. After clarifications, the accused indicated that what he was admitting to was the fact that he struck the deceased with a wooden stick on the head but not that he intended the deceased’s death nor foresaw it as a real possibility. The accused’s plea was recorded as one of not guilty in consequence of the clarification. Defence Counsel confirmed the not guilty plea and the matter proceeded to trial. State counsel sought the admission of the postmortem report and the certificate of weight of the wooden stick used by the accused to assault the deceased. The two documentary exhibits were produced as exh 1 and 2 after the state and defence outlines had been read into the record and marked Annexures A and B respectively. The post mortem report was prepared by Doctor HH 791/16 CRB 155/16 Mauricio Gonzalez, after an examination of the deceased’s remains on 30 July, 2015. The doctor is employed as a registered Medical Practitioner. His qualifications are legal medicine specialist. He is based at Parirenyatwa Hospital and this is where he examined the deceased’s remains. The doctor carried out both an external and internal examination of the deceased’s remains. With respect to the external examination, the following observations were made: (i) the deceased weighed 80kg and measured 174 cm in height, being a well-nourished African male. (ii) a surface wound (6 cm) long on the outer parietal area. There were no other abnormalities noted. On the internal examination, the doctor observed the following injuries: (i) (ii) subgaleal haematoma on the intra parietal area. subarachoid haematoma of the brain. (iii) pulmonary oedema in both lungs. The doctor concluded that the deceased’s death was a result of subarachnoid hemorrhage. In layman’s terms, this condition refers to bleeding within the subarachnoid space which is the space between the brain and the tissues which cover the brain (See www.heatlhline.com – accessed on 28 November, 2016). The secondary causes which led to the bleeding aforesaid were recorded as head trauma and assault. The certificate of weight showed that the wooden stick used by the accused to assault the deceased as 1.55cm long and weighed 830grammes. It is also convenient at this juncture to comment on exh 3 which was also produced by consent. Exhibit 3 was the sketch plan of the scene of the assault or altercation between the accused and the deceased. The relevance of the sketch plan is that it shows that the events which will be outlined below took place within a farm compound and within a radius of between 4 – 5 metres. The facts of the case are largely common cause. The State and defence counsels discussed the evidence intended to be led by the State. This culminated in the evidence of State witnesses Yotamu Zulu, Selina Masunga, Abeshel Mundandishe and Learnmore Garanowako as outlined in the State summary of witness evidence being admitted by consent. HH 791/16 CRB 155/16 Yotamu Zulu is a farm security guard at Good Hope Farm where the incident accrued. The deceased was his workmate. He tried to dress the deceased’s wound after the assault. He also took possession of the wooden stick, exh 2. He also made indications to the police at the scene on 31 July, 2015. His indications are described in the sketch plan, exh 3. Selina Masunga is a primary care nurse at Belgone Clinic in Mazowe. The deceased was brought to the clinic when she was at work. She dressed the deceased’s wound and thereafter referred the deceased to Concession District Hospital for further management or treatment. This was on 29 July, 2015, the date of the assault. Abeshel Mundandishe is a general nurse stationed at Concession District Hospital. He was on duty on 29 July, 2015 when the deceased was brought to the hospital. He observed a deep bleeding cut on the deceased’s scalp and the deceased was unconscious. He sutured the wound and administered 1 gram of roceplin injection on the deceased intravenously. The deceased was referred to Parirenyatwa hospital in Harare. Garanowako Learnmore is a doctor stationed at Concession District Hospital. He also examined the deceased whose blood pressure and pulse were normal. He however observed that the deceased was not responsive to stimuli, had impaired consciousness, dilated pupils and sluggish response to light. He then referred the deceased to Parirenyatwa Hospital after reaching the conclusion that the injury to the deceased’s head was severe and required further specialist management. The above sums up the admitted evidence. The State led evidence from four witness. These were, Lameck Ndoro, Smart Kamhuka, Constable Luckmore Simbanegavi and Assistant Inspector Chikosha (retired). It is not proposed to individually deal with the evidence of each of the witnesses. The first two witnesses were civilians who were at the scene of the altercation and subsequent assault on the deceased by the accused using the wooden stick. The two police witness were involved in the investigation of the case. It is therefore convenient to collectively summarize the evidence of the civilian witnesses and similarly that of the police witnesses. There are no areas of conflict in the evidence save as may appear from the summary herein following. From the evidence of the civilian witnesses, the following material evidence is captured as a summary of what they testified to: HH 791/16 CRB 155/16 1. The accused and Smart Kamhuka were resident at Audikraal Farm. It is a neighbouring farm to Good Hope Farm where the altercation between the deceased and the accused took place. The two are friends or acquaintances having grown up together at Audikraal farm where they were brought up by their parents. 2. 3. On the fateful day the two went to Good Hope Farm. They each carried a satchel. On arrival at the Good Hope Farm compound, the deceased approached them and demanded to search their satchels. The witness Smart Kamhuka submitted to the search. The accused resisted the search and enquired of the deceased why he wanted to search them whether the deceased was a police officer and challenging him to produce his identity card. 4. The deceased did not appear to have taken lightly to being challenged on his authority. He then slapped the accused on the cheeks. The accused remonstrated with the deceased as to why the deceased was slapping him and whether the deceased had authority to assault him. The deceased held the accused by the collar as he slapped him. 5. The deceased then let go of the accused and went to sit by a tree nearby. The accused upon being released by the deceased picked a wooden stick from a pile nearby and immediately followed the deceased where he sat. He struck the deceased once with the stick on the head. From the indications by the witness Smart Kamhuka as depicted on the sketch plan exh 3, the accused picked up a wooden stick from a pile which was 1 metre from where he had been released by the deceased who had been assaulting him and the accused moved 4 metres to where the decease