S v Paliza (CRB 166 of 2014) [2015] ZWHHC 111 (22 January 2015)

1 HH 111/15 CRB 166/14 THE STATE versus KENNEDY PALIZA HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 30 & 31 October, 14 November 2014 & 23 January 2015 Assessors: 1. Mr Kunaka 2. Mr Mhandu Criminal Trial E. Nyazamba, for the state T. Katehwe, for accused MUSAKWA J: The accused pleaded not guilty to contravening s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that on 26 February 2008 and at number 3711 Old Highfield, Harare, the accused unlawfully and with intent to kill assaulted Memory Paliza by striking him with a knobkerrie all over his body thereby causing injuries from which the deceased died. It is not very clear why it took six years to prosecute such a straightforward case. In his defence outline the accused states that on the day in question, the deceased who was of unsound mind shattered some window panes. When the accused attempted to talk to the deceased, the latter tried to attack him. The two had a scuffle and the deceased fell against the wooden arm rest of a couch. The accused never intended to use the knobkerrie he was holding. Thus he denies intending to kill the deceased or realising the real risk or possibility of causing death. The deceased was violent and the accused meant to discipline him and to protect himself against attack. It is common cause that the deceased was the accused’s nephew and the two resided together with other relatives. The deceased was on medication for a mental disorder. He had defaulted in taking medication which rendered him belligerent. The state led the bulk of its evidence by way of admissions of the witnesses’ testimony as summarised in the summary of state case. The post-mortem report on the HH 111/15 CRB 166/14 deceased was produced. The report noted bruises on the right shoulder, thigh, leg and left shoulder. There was scalp haematoma of the right parietal as well as left pneumothorax due to collapsed lung which was perforated by fractured ribs. The fourth to sixth ribs were fractured on the anterior and posterior walls. The cause of death was noted as pneumothorax and multiple rib fractures arising from assault. The accused’s warned and cautioned statement was also produced. It (In its poorly translated version) reads as follows: “I do not admit the charge. It is true that I assaulted the deceased with a knobkerrie but I wanted to discipline him as my nephew since he had a tendency of breaking window panes. I had no intention of killing him, and furthermore the deceased was of mental health (sic) so he liked violence. I wanted to defend myself. I assaulted him at the nineth (sic) hour and the following morning he requested for some water to drink and was given by my mother. He did not die soon after the assault. He should have died of other causes not assaults. The deceased was my nephew whom I loved and I looked after him since he was young. So I do (sic) like him to die in such a way.” Laison Paliza the accused’s younger brother was the only state witness to give viva voce evidence. He stated that following the shattering of two window panes by the deceased the accused came home and resolved to discipline the deceased. He told everyone to leave the dining room. This was around 8 p.m. He had seen the accused holding a broom stick. From his room he could hear sounds of blows striking and the deceased’s panting. The deceased also stated he would break more panes. He estimated the assault to have lasted for about twenty five minutes. Considering the accused’s admission to the use of a knobkerrie, Laison withheld evidence on this aspect. The evidence attributed to him in the summary of state case is to the effect that the accused used a knobkerrie. This was a material discrepancy which state counsel should have addressed with the witness. Laison further testified that the following morning another nephew woke him up. When he went into the passage he saw the deceased lying on his back. The deceased was not stirring although the body was still warm. Attempts to resuscitate him proved futile. The witness further explained that on the day of the assault, when the accused arrived home the deceased was seated in the lounge. Asked if the deceased had attacked the accused (per defence outline) he obviously speculated that it might have been so as the deceased was of a violent disposition on account of not taking medication. On the following day he said he saw a smaller piece of the broke broom stick. HH 111/15 CRB 166/14 Another remarkable aspect of this witness is that when the deceased was being assaulted he retired to bed. In fact he made reference to taking some medication. He did not seek to intervene as he thought the deceased was merely being disciplined. The accused’s evidence in-chief was quite brief. He stated that the deceased was in the habit of breaking window panes. He resolved to discipline him. Hence the use of a broom stick. He called the deceased to the dining room and he complied. He demanded to know why the deceased was behaving in a defiant manner. The deceased got up and advanced towards the accused. The accused picked up the broom stick and started to assault the deceased. He justified his action as being motivated by trying to deter the deceased from being violent. He did not foresee the fatal consequences. The deceased normally paid heed to what he said. Under cross-examination he confirmed that he ordered everyone from the room. As to how he intended to discipline the deceased he stated that by assaulting him with the stick. He also stated that he did not know that the deceased had defaulted in taking his medication. Asked if the deceased attacked him he answered in the negative. He was then asked why he claimed the deceased was about to attack him and he replied that it was the manner in which he got up. They then grappled and fell down, with the deceased hitting against the arm rest of the sofa with his chest. He admitted that the fall was accidental. He also admitted that he desisted from assaulting the deceased after about twenty five minutes. This, he said was after the intervention of his mother. In his address Mr Nyazamba quite correctly submitted that the requirements of defence of person as provided in s 253 of the Code were not met. He further submitted that even if it were accepted that the accused was under attack, the means he used were unreasonable. He also submitted that the accused was aware of the risk of using a stick on the deceased. In such a case there was an element of recklessness. Having initially reasoned so well Mr Nyazamba then somersaulted in his next submission. He concluded that the accused should be convicted of culpable homicide. He based this submission on the accused’s belief that he was disciplining the deceased. Mr Nyazamba also attacked his own case by submitting that there was no internal examination of the deceased’s skull. The submission here is that it ought to have been established whether the deceased would have survived had he received medical attention. This, in my view is a superfluous submission as Mr Nyazamba had earlier on submitted that there was no break in the chain of causation as he made reference to s 11 of the Code. HH 111/15 CRB 166/14 In his address, Mr Katehwe for the defence made common cause with Mr Nyazamba’s submissions regarding a verdict of culpable homicide. He submitted that there is a fine line between a deliberate killing and death resulting from a realisation of real risk or possibility. He thus submitted that whilst the accused might not have subjectively foreseen death, a reasonable person would have foreseen the possibility of causing death. There is no doubt that the accused’s conduct caused death. He used a weapon and inflicted injuries which resulted in the deceased’s death. It is immaterial and does not arise that the deceased could have survived if he had received medical attention. In any event, it is the accused himself who should have ensured that the deceased receive