S v Mukodzi (26 of 2023) [2023] ZWCHHC 27 (5 April 2023)

1 HCC 26/23 CRB 32/23 REGAI MUKODZI Versus THE STATE HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 5 April 2023 Criminal Trial T. H. Maromo, for the State F. Murisi, for the Accused Introduction BACHI MZAWAZI J: Generally, the police are the peace keepers and protectors of the people cum citizens. Paradoxically if life is lost at the hands of those who are tasked to protect it then it does not only shake but undermines public confidence in the system. Ironically, in this case, deceased, Mike Mudukuti, died of gunshot wounds to the head at the inside entrance of his own kitchen hut and homestead in broad daylight at the hands of law enforcement agents, the police. This boils to the question of the justification of the use of force, or excessive force in particular, in effecting arrest and during the course of investigations. After the conduction of a fully contested trial, this court delivered an ex tempore judgment. This is the full version of the judgment. The Charge The accused is facing a single count of murder in contravention of section 47 (1) of the Criminal Law Codification and reform Act [Chapter 9:23]. He was defended by his pro deo counsel and he pleaded guilty to the charge. HCC 26/23 CRB 32/23 The Summarised facts It is alleged that the accused, a decorated member of the police force, in the company of more than nine other police officers responded to a report that had been made one, Steven Chidhumo, that the now deceased had threatened him with a spear. From the facts it is common cause that the police’s main mission on the day in question was not solely to investigate the said report but to make a follow up on several others as they had no station vehicle. In that respect, they capitalised on the availability of a vehicle on the day in question. The evidence on record also reveals that they had not gone to arrest the deceased but to investigate. This is so because there was no evidence of the report that had been entered in the police report book nor the statement of the complainant or any other person that was produced before the court. In addition, the same complainant was not called to testify in support of the report. Be that as it may, upon arrival at the deceased’s home, after establishing that the accused was sitting on a clay bench, alone in his kitchen hut, the police surreptiously formed a horse shoe or cattle horn formation around the hut. They then identified themselves and called the deceased out but he refused to barge necessitating the throwing in of a gas cannister in order to smoke him out. No sooner was the gas cannister thrown, did the accused who was in charge of the firearm on the day, fire several repeated gunshots directed to the hut where the accused was. One of those shots hit the deceased on the head resulting in the fatal injuries. The deceased succumbed to the gunshot wound and died before arrival at the hospital. The State Case The State case is comprised of mainly the direct evidence from the police officers who were at the scene of the crime at the time of the commission of the offence. Whilst the evidence from these witnesses tallied in some respects it also differed in several material aspects as will be explored later. Indirect evidences also emerged from the testimony of the witnesses and circumstances surrounding the commission of the offence. It suffices, to note that of the nine lined up State witnesses, six gave oral evidence whilst the rest was admitted in terms of the relevant sections of the governing Criminal law statutes. The autopsy report, pathologist and morgue attendant affidavits, sketch plan and indications, photographs and the HCC 26/23 CRB 32/23 confirmed warned and cautioned statements are among some of the exhibits tendered. Part of State evidence came from two independent but not eye witnesses. Accused’s Defence The accused, in his defence admits to shooting the deceased as alleged but claims that he was acting in self- defence and that of his colleagues. He stated that he saw the deceased by the kitchen door bending and holding a spear just after the gas cannister had been thrown into the little hut. He then thought he and his workmates were under an imminent unlawful attack so he fired four shots, three warning shots and the last that hit the deceased on the head. It is his argument that his conduct was necessary to avert the attack and the force used and harm inflicted was proportionate to the danger posed. Notably, the issue of warning shots was not part of the accused ‘s defence outline but was introduced during the course of the trial in the cross-examination of witnesses. Witness Evidence The first State witness to give evidence, is a serving police officer and a blood sister to the deceased. She was amongst the first independent persons to attend the scene after the police had left. She attested to seeing what she concluded as bullet holes on four separate places on the inside walls and the clay stool in the kitchen hut. She made indications and photos taken to that effect are on record marked exhibit 14(a). She told the court that she saw a heavy blood trail behind the kitchen door and a cloth soaked in blood. From her perspective, the blood indicated that the deceased was bleeding in the room and never went outside. She also confirmed seeing some blood traces close to the entrance but inside. The witness stated that she had to clean the place in preparation for the funeral but during that process she recovered some metal objects which she was not sure of at the time but placed them by the dumpsite and later showed the investigating officer the site. This witness also testified that the deceased had no history of violence and was not of a violent disposition. The court found this witness credible. She was consistent and not shaken under cross examination. Although she did not actually witness the shooting, she was adamant that from HCC 26/23 CRB 32/23 the blood stains she saw the deceased was shot whilst inside the house. Her evidence on this aspect was unchallenged and remained uncontroverted. From a holistic analysis of all evidence led in court no traces of blood were reported to have been found or outside the hut the deceased was in. This is a crucial piece of direct evidence in piecing the puzzle together in the final analysis. Again, the blooded piece of cloth the witness saw was not denied by the suspect witnesses as they admitted that they tried to render first aid to the deceased after the gunshot. The second state witness is also a sister to the deceased who resided in the same locality with him. She did not witness the shooting. She confirmed that the deceased had no history of violence. She is the one who first learnt of the shooting from the Village Head who instructed her to go and secure the now deserted homestead after the police had left with the seriously injured deceased. She however, discovered that the door had been closed by the police themselves after the shooting incident. She in turn alerted the first witness and the rest of the family. This witness told the court that the recovered spear was an ancestral traditionally sanctified family relic kept with other spiritual paraphernalia at a sacred place within the homestead but not in the kitchen. This witness was unsophisticated, her evidence flowed naturally without exaggerations. The court found her evidence credible, it shaded light on the mysterious spear that is central to the commission of this offence. The evidence of the rest of the State witnesses was more or less the same in many respects since they were at the scene and also active participants in the whole evolving saga. There were however some discrepancies in some critical areas of the case with some officers departing materially from the evidence they initially gave in writing. From the testimony of the rest of the state witnesses who testified in court as juxtaposed to the already admitted summarized evidence filed of record the fo