S v Nyarongwe (CRB 66 of 2011) [2015] ZWHHC 321 (5 March 2015)

1 HH 321-15 CRB 66/11 THE STATE versus MASIMBA NYARONGWE HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 12, March 2012, 13 March 2012, 13 April 2012, 16 December 2014, 17 December 2014 and 6 March 2015 Assessors: 1. Mr Tutani 2. Mr Chivanda Criminal Trial Ms E Manhamo, for the State I, Ndudzo, for the accused MWAYERA J: The accused pleaded not guilty to a charge of murder in which it is alleged by the State that on the 2 January 2009 the accused caused the death of his daughter Chipo Nyarongwe by striking her with a wooden stick twice in the head, the accused caused injuries resulting in intracranial haemorrhage from which the deceased died. A brief summary of the State case is to the effect that on I January 2009 the deceased Chipo Nyarongwe stole a cock from Joyce Gandawa’s homestead; later the deceased was located in the bush by Joyce Gandawa and taken to her homestead. The accused after being notified proceeded to Joyce Gandawa’s homestead and he picked a log which he used to strike the deceased thrice on the head and once on the back. The accused then took the deceased home following which she died. In his defence accused denied having caused his child’s death. He indicated that the nature of assaults he perpetrated on the deceased would not have caused her to die. He recounted that he assaulted the child in a bid to discipline her since the child had developed a habit of stealing foodstuffs from the local villagers and he was receiving complaints from them. HH 321-15 CRB 66/11 At the time from the alleged thefts at Joyce Gandawa’s place the child had gone missing for a day and it is Joyce Gandawa who said she had located the child and called the father to her homestead. The accused suspected that Joyce Gandawa might have assaulted the deceased before she called him to her homestead where the child was detained. Evidence was adduced from the state witness as follows; Joyce Gandawa recounted how she had apprehended the deceased who had stolen her cock from the kitchen and how she cooked the chicken. The witness narrated that in the morning she observed the deceased steal from her kitchen and when she tried to apprehend the deceased the latter fled and hid in the bush. The witness then notified the parents and later in the day she apprehended the deceased whom she bound and tied to a pole on the maize rack or granary while awaiting the accused to come to the homestead to take his child. According to the witness when the accused came he picked a small log from the field and assaulted the deceased twice on the head and once on the back. The description of the log as small given the 1½ meter log which was produced in court did not tally and probably makes sense when one goes down in assessing the evidence which was adduced before the court. According to the witness the accused had to carry the deceased from her house as the deceased was having difficulties in walking following the assault by the father the accused. The witness advised the village head Mr Pikitai Ruzvidzo about the assault after the report of the deceased’s death. She identified the stick which was produced as an exhibit in court as the one which was used by the accused. The witness also told the court she together with one Obert Mutasu restrained the accused from further perpetrating assaults on the deceased. A lot of questions more than answers were provided by the witness’s testimony. It was not explained why she deemed it necessary to tie down the complaint a ten year old after apprehension as opposed to taking the child to her parents’ home. She appeared too eager to point out that she restrained the accused who was inflicting a beating on the child. The question is what was the aim when she immobilised the child by tying her to a pole at her house. We will constantly revisit Joyce’s evidence as the judgement progresses. Obert Mutasu was called in as a second State witness. Contrary to Joyce Gandawa’s version that he observed the accused assault the deceased, the witness told the court that upon his arrival at Joyce Gandawa’s residence he was advised by Joyce that accused had assaulted his daughter the now deceased. The witness did not see how the assault was perpetrated. The witness was only shown a stick allegedly used by the accused to assault his child by Joyce. He did not witness what happened and only relied on Joyce’s account as well as the accused’s HH 321-15 CRB 66/11 account that when he assaulted the deceased it was to discipline her and that the deceased told him not to further perpetrate assaults, for she had already been assaulted. The witness did not seek to exaggerate his testimony on recounting what transpired during his absence. He was candid. His version was contrary to that of Joyce Gandawa that the witness assisted in restraining, he did not get to the scene when there was need for him to be restraining as the assaults had already been perpetrated. This again made Joyce’s evidence highly suspect. One could not help but raise eyebrows on reactions by Joyce. The village head was the third witness to testify Pikitai Ruzvidzo he got news that the accused had assaulted his daughter and he got this news from Joyce Gandawa. He also was shown a stick which was allegedly used by the accused to assault the deceased and this he was shown by Joyce Gandawa. Upon report of death of the deceased, he notified the police as the village head. According to the witness the accused had reported to him that the child died as a result of headache. The witness version was fairly straightforward as he only recounted what he got from Joyce and the accused. His involvement was basically after the death of the deceased. The fourth State witness, Samson Nyarongwe a brother to the accused also came into the picture after the death. He learnt from the accused that the deceased had stolen from Joyce Gandawa and that the accused assaulted the deceased for that misdemeanor. He also accompanied the accused to report the matter to the village head. The witness observed the deceased’s body which he identified to the police. He observed the body had a wound on the neck, a swollen head and swollen belly. This observation of the witness was contrary as will unfold to the doctor’s observation, for the doctors observations were not reduced to writing. We found nothing to criticize about the witness evidence, it was fairly straightforward. He was removed from the violence and there is nothing that could have stopped him from observing injuries and wounds on the body of his brother’s daughter. The last State witness, Doctor Kudzai Zimudzi was candid with the court in so far as he made it clear he only carried out an external examination but came out with a conclusion the cause of death was internal injuries, intracranial bleeding. There is no question about the doctor being qualified to carry out a postmortem examination. He is qualified as a general practitioner. He observed the deceased had a wound on the frontal area of the head and made no other observations or at least recorded no other observations. This is contrary to the State witness Samson Nyarongwe as earlier mentioned. Given that the doctor did not endorse the HH 321-15 CRB 66/11 observations the witness Nyarongwe’s evidence cannot be disputed neither can it be said to be an exaggeration of what he observed on the body of the deceased. The doctor narrated to the court that he did not carry out internal examination because of lack of resources to use. He formulated an opinion that the external injury on its own could not have caused the death but that the impact which was caused would have potential of causing blood clotting under the skull and that such a scenario would then result in death. He made it clear to the court that the examination he carried out was incomplete. The court noted that there were omissions on the postmortem report like for example the none endorsement of observation of the body parts. The doctor explained the omissions of internal examination to have been occasioned by shortage of resources. No matter how genuine this might have been it remains glaringly open that the conclusion of the cause of death being caused by internal injuries was not supported or inconformity with the external examination which had been carried out. The post mortem report does not indicate that the doctor examined all body parts as there were no such endorsements. It remained after the doctors testimony open that the post mortem report is not all embracing and cannot be conclusive to support the finding therein. As correctly observed by BERE J, in the State v Kudakwashe Masawi, HH 320/14 p 6 of the cyclo styled judgement. It is imperative that when a post mortem report is carried out it must be all embracing; all wounds must be recorded to enable consistency, there should be no selective approach. It appears in the post mortem report which was relied on by the State and tendered as an exhibit such selective approach is what the doctor adhered to as opposed to the all- embracing position which would give a clear picture as regards the conclusion on the cause of death. In the present case the reports states that only external examination was conducted yet the doctor’s conclusions can only be reached after internal examination. This leaves the court with an incomplete report thus leaving the real cause of death to be a speculative issue. The inconclusive nature of the post mortem report is worsened by the totality of States witnesses and accused’s evidence. Joyce Gandawa had property stolen her cock, and she was unrelenting in looking for the deceased or the culprit. After she located the deceased she tied or confined her to a pole on the maize rack. One continues to wonder why that was necessary instead of taking the child to his parents’ home. Joyce Gandawa confirmed the child could not walk when the father, the accused took her home from Joyce Gandawa’s house. She was not forthcoming as to how she HH 321-15 CRB 66/11 had apprehended, confined, captured and bound the deceased. Given her description of the two or three strokes on the child by the father the description by the doctor that the external wounds which he observed on their own would not suffice to cause death and the evidence of the accused that he struck the deceased for purposes of instilling discipline. One is left to wonder what it is that caused the child to fail to walk from Joyce’s home. The deceased had to be literally carried by the father to their homestead. The report by Joyce Gandawa to the village head was only after the death of the child. She emphasized even to the State witness, her brother-in-law that the accused had assaulted the child. The manner she carried on that fateful day and the manner she testified leaves a lot of suspicion. When viewed with the sequence of events, the State witness’s conduct prior and after the child was taken by the father gives credence to the accused’s version. The accused admitted he assaulted the deceased as a way of instilling discipline in her, even in his confirmed warned & cautioned statement which was tendered as an exhibit in court, the accused admitted assaulting the deceased in a bid to instill discipline because the child had developed a habit of stealing foodstuffs from the neighbours. He confirmed receiving a report of theft from Joyce Gandawa and later after apprehension of the child by Joyce Gandawa, he saw the child tied to a pole. He assaulted the child, the deceased as he says for purposes of disciplining her, but immediately stopped when the child notified him that she had already been assaulted. The accused had to carry the child home as she was unable to walk on her own. This turn of events is certainly consistent with accused’s story that when he was called to Joyce Gandawa’s place and the child was secured to a pole, deceased had already been subjected to assault or had already been injured. Joyce Gandawa’s story on how she apprehended the deceased and why she secured the deceased to a pole leaving her at that house and then proceeding to notify the parents remains not only suspicious but dubious given the turn of events. The accused generally impressed the court as a sincere witness when he testified, he was consistent in his defence outline, at the time of investigation when he gave the cautioned and warned statement and during evidence in chief. When he recounted how he assaulted the deceased and then ferried her home. The assault was not protracted and the accused actually realised the child was hurt and he carried the child. There is no evidence that he force marched the child to go back home. He also told the court that at home the deceased fell but he did not establish if the deceased was hurt during the fall. In light of the testimony of the HH 321-15 CRB 66/11 doctor, there is nothing much which was presented before the court as regards that fall for there was no conclusive post mortem report presented. Given the evidence as outlined above from the State and defence and having due regard to submissions by both State and defence it is imperative that the charge the accused is facing be placed in perspective. The accused is facing a charge of murder as defined in the Criminal Law (Codification Reform) Act s 47 1 (a) and (b), it is apparent from the code and even common law that the essential elements of murder are unlawfully and intentionally causing the death of another person. The crime of murder can only be committed where the accused unlawfully intended to kill the victim. Both the actus reas and mens rea have to be present. Put differently an accused can only be guilty of murder if his action causes the consequence which would be the factual cause. The action of the accused must be both factual and illegal. For constructive intention the test will be whether it is objectively foreseeable within the range of ordinary human experience that the actions of the accused would lead to the death of the deceased. There is plenthora of case law in respect of defining essential elements. See The State v Milos Moyo HB 85/2010. Guidance can also be from professor G Feltoe’s Guide to Criminal Law of Zimbabwe, p 101. From the evidence adduced before the court, one cannot say that the accused on the fateful day set out intentionally with a desire to bring about the death of the deceased. The accused disputed having used a log to assault his child and stated that he used a stick to instill discipline in his child. We found no reason to disbelieve this version more so given even Joyce talked of “picking a small log” which we put in quotations given the totality of Joyce’s evidence. Given the totality of the circumstances it is not in dispute the deceased who had earlier stolen from Joyce Gandawa was bound onto a pole by Joyce Gandawa when the father struck the child twice or thrice. The assault was not persistent, the circumstances under which the deceased was assaulted do not support that the accused set out with an aim to cause the death of the deceased. Again the second rung of murder with constructive intent which would require the accused to have foreseen the possibility of real risk that his conduct may cause death but nonetheless continues to engage in that conduct has not been shown. The circumstances of the case and evidence presented before the court is devoid of showing that the actions of the accused caused the death. Both actual and legal intention cannot be deducted from the evidence before the court. HH 321-15 CRB 66/11 The State counsel correctly assessed evidence and in his submissions presented to court, he acknowledged that murder with actual intent or constructive intent could not be sustained from evidence adduced. It is trite in criminal proceedings the State has the onus to prove the guilty of an accused beyond reasonable doubt and conversely the accused has no duty to prove his innocence beyond reasonable doubt. In the case R v Difford, 1937 AD 772 at 373 which has been quoted in many cases in our jurisdiction with approval, it is apparent the accused has no duty to prove his innocence, once accused’s explanation is reasonably possibly true then he is entitled to an acquittal. In casu it is interesting to view accused’s defence in conjunction or juxtaposed with the States version especially evidence of Joyce Gandawa the key State witness. It is our well- considered view, Joyce Gandawa is a possible accomplice who for unexplained reasons escaped firstly investigation by the police. Secondly, prosecution at presentation of State case. She was enraged beyond “normalcy” it is our view, for theft of a cock and thus promised to search till she brought the culprit to book. She true to her word indeed proceeded with the mission. She apprehended the deceased and unlawfully detained and then latter bound her to a pole in open exposure to whatever weather conditions were prevailing on the day in question. From the manner events unfolded, that the deceased could no longer walk having been alone with Joyce for a considerable time, Joyce Gandawa’s zeal in testifying that she and her brother-in-law restrained accused an inaccurate fact as it was denied by the brother- in-law clearly places Joyce in the realm of a witness testifying to serve their own purpose. In this case the more she tried to remove herself from the proximity of the offence the more pronounced was her desire to raise dust and smoke screen to mislead the court. Her evidence was viewed with caution as she fell squarely in the realm of quasi accomplice or even for our purposes possible accomplice. More so when one considers she kidnapped, unlawfully detained and bound the deceased before she went to call the parents. We are persuaded to agree with the line of presentation as given by the defence that she falls under accomplices and in fact as earlier shown we have viewed her evidence with suspicion as such we took the necessary caution. The case of S v Chouhan 1987 (2) SA 315 is instructive. This conduct of Joyce is what has given rise to the gap of what caused the death of the deceased more so with the incomplete post mortem report. It remains unclear how deceased was handled by Joyce Gandawa prior to the calling in of the father. The case of R v Ncanana 1948 (3) SA 399, which has been cited with approval in cases in our jurisdiction, is relevant HH 321-15 CRB 66/11 when it comes to dealing with accomplice evidence. It is important and we quote with approval the observation made in the Ncanana case (supra), “What is required is that the trier of fact should warn himself or if the trier is a jury it should be warned of the special danger of convicting on evidence of an accomplice for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such umbrella a witness peculiarly equipped by reason of his insight knowledge of the crime to convince the jury that his lies are the truth”. The evidence of Joyce Gandawa squarely falls under such umbrella and therefore is viewed as unreliable. In the circumstances of this case given the unreliable evidence of the key State witness there is a danger of false incrimination more so with the key state witness Joyce Gandawa having been exposed as having an interest in hiding facts for her own protection and also the inconclusive post mortem report does not help the situation. There is no sufficient evidence placed before the court even to impute that the accused acted carelessly to cause the death of his child by striking her twice on the head with a wooden stick. This is primarily so because it has been shown prior to the arrival of the father, Joyce Gandawa bound the deceased to a maize rack pole and that the deceased had to be carried from that homestead for she could not walk on her own. The cause of death has not been established given the circumstances of the case and further there is in complete postmortem examination. The only evidence that is incriminating in the circumstances is the consistent admission by the accused that he assaulted the deceased who was in the habit of stealing from the neighbours. The assault was to instill discipline in the child and when the child disclosed that she had already been assaulted by Joyce Gandawa he immediately stopped and carried the child who had been immobilized at Joyce Gandawa’s place. Accordingly the accused cannot be found guilty of murder with actual intent or constructive intent or culpable homicide. This is more so given the glaring gaps in the States version. The question that remains disturbingly unanswered is as regards how and when Joyce Gandawa bound the child and why it was necessary to leave the child or the deceased instead of just taking the deceased to her parents’ home for any interrogation pertaining to the stolen cock. The onus on the State is to prove the case beyond reasonable doubt regardless of the charge and in the absence of proper interrogation of Joyce Gandawa by investigating officers and incomplete or inconclusive medical report the State’s version falls far short of proving the required onus. HH 321-15 CRB 66/11 The accused however, as earlier mentioned admitted having struck the child twice with a stick to instill discipline. The purpose of assaulting an individual is not a defence at all to the charge. In terms of s 89 of Criminal Law (Codification Reform) Act [Chapter 9:23], any person who commits assaults upon another person intending to cause that other person bodily harm or realizing that there is real risk or possibility that bodily may result shall be guilty of assault. Given the circumstances of this case and the evidence before the court the accused assaulted the deceased realizing there was real risk or that there was possibility that bodily harm may result. From the foregoing accused is accordingly found not guilty and acquitted of the murder charge and he is accordingly found guilty of assault as defined in s 89 of the Criminal Law (Codification Reform Act) [Chapter 9:23]. Sentence In passing sentence we have taken note of mitigatory factors advanced in your favour by your legal practitioner. We have also considered aggravatory factors advanced by the state counsel. We have taken note of the mitigatory factors that you are a first offender, a family man. Going by the evidence you have always accepted that you struck you child with an intention to instill discipline into the child. We view that admission as a sign of contrition. We have also taken note of the fact that you have been in custody since 2011 and that the offence of murder has been hovering over your head from the second of January 2009. Certainly throughout that period you went through anxiety and torture as you awaited the finalisation of the matter. You have been convicted of assault. It is understandable to the sophisticated but in the rural areas where you live and to the ordinary citizens of the country you will always be labeled a murderer who murdered his own child albeit you have been convicted of assault. That stigma, will always attach and that is punishment in itself. It is regrettable that the deceased passed on, on the fateful day but there is no indication as correctly observed by the State counsel as regards the extent of the injury which was occasioned by the manner in which you struck the deceased on the head. In aggravation is the fact that you struck a 10 year old girl child for stealing a cock in the manner that you assaulted her. Use of violence to instill discipline cannot be accepted as there are other means of instilling discipline which are viewed as civilized and appropriate. The offence is deserving of a custodial term however, in due recognition of the mitigatory factors which have been cited in your favour and given, the period that you have been in custody, it would not be in the interest of justice that we give you an effective prison term. HH 321-15 CRB 66/11 Your further incarceration would not in our view meet the justice of the case. We feel a suspended prison term will serve the purpose. The message has to be send though to all citizens that violence does not pay and it is not acceptable. Courts frown at that form of discipline which would subject any other person to inhuman treatment and degrading treatment. You are sentenced as follows; 10 months imprisonments wholly suspended for five years on conditions accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine. National Prosecuting Authority, the state’s legal practitioners Mutamangira and Associates, accused’s legal practitioners