S v Takavarasha (HB 37 of 2017; HC CRB 26 of 2017) [2017] ZWBHC 37 (31 January 2017)

1 HB 37/17 HC (CRB) 26/17 THE STATE Versus GUIDE NICHOLAS TAKAVARASHA IN THE HIGH COURT OF ZIMBABWE MATHONSI J GWERU CIRCUIT COURT 30 & 31 JANUARY 2017 Criminal Trial M. Shumba for the state E. Mandipa for the accused MATHONSI J: The accused person was 62 years at the time of the alleged offence. He has since celebrated his 63rd birthday on 9 January 2017. He was working as a caretaker while also doing panel beating and spray-painting at stand number 89 8th Street Gweru. At the same place there were other operators accommodated there who included the deceased Trevor Gezana, then aged 29 who was employed as a car washer. He is accused of causing the death of the deceased Trevor Gezana by striking him on the head and all over the body several times using two metal pipes intending to kill the deceased or realising that there was a real risk that death might result from his actions but proceeding regardless. The accused pleaded not guilty to the charge and stated in his defence outline that although he assaulted the deceased he acted out of anger after the deceased had provoked him. He stated that in the morning of 11 November 2016, he had been talking to one of the car washers about a vehicle which the said car washer had attended to the previous day which had thereafter failed to start. At that point the deceased had come running and shouted at him accusing him and a certain Mrs Beverly of charging them exorbitant rentals and rates. The deceased insulted him and then poked him on the mouth with a finger saying to him that he wanted him to be sent to prison presumably for assaulting him. He says he did not react HB 37/17 HC (CRB) 26/17 to those insults but simply went to his office. Whilst there he was called by the caretaker of Lutheran Church located next door who wanted him to mount a sink at their church. He was paid $20,00 for the rods to mount the sink. He then picked up 4 pipes from his office intending to proceed to Lutheran Church. It was while he was at the entrance to the premises where they worked that he was again accosted by the deceased who repeated the insults directed at him. He again poked him on the mouth causing him to stumble and fall down with his pipes as he retreated. Picking himself up, the accused says he used one of the pipes which was about a metre long to strike the deceased once on the left side of the head just near the neck. The deceased fell down and started to bleed from the mouth and nose. He says he dropped the pipe and went back to his office where he tried to commit suicide by taking poison. Of course the accused did not die. He was rushed to hospital, survived the attempt on his life and lived to face this charge of murder. The weapons allegedly used in the commission of the crime were produced as exhibits. The first is pipe one, exhibit 5, which is 0,74cm long, has a circumference of 10,5cm and weighs 1,111kgs. Pipe 2 which was produced as exhibit 6 is 1,86m long, has a circumference of 10,5cm and weighs 2,74kgs. The post mortem report prepared by Dr Ivian Betancourt, a pathologist at United Bulawayo Hospitals, following an autopsy conducted on the body of the deceased on 14 November 2016 which is in the form of an affidavit was produced by the state in terms of s 278 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. That section provides: “In any criminal proceedings in which it is relevant to prove – (a) any fact ascertained by a medical practitioner in any examination carried out by him which is proper to the duties of a medical practitioner; (b) … (c) any opinion of a medical practitioner referred to in paragraph (a) or (b) relating to any fact or treatment referred to in that paragraph; HB 37/17 HC (CRB) 26/17 a document purporting to be an affidavit relating to any such examination or treatment and purporting to have been made by a person who in that affidavit states that he is or was a medical practitioner and in the performance of his duties in that capacity he carried out such examination and ascertained such facts in such examination or administered such treatment, and in either case arrived at such opinion, if any, stated therein shall on its mere production in those proceedings by any person, but subject to subsection (11) and (12), be prima facie proof of the facts and of any opinion so stated.” (The underlining is mine) Subsection (11) provides that the affidavit shall only be admissible where the prosecutor or the accused person has been given 3 days notice of its intended production or consents to its production while subsection (12) gives the court the discretion to cause the medical doctor or any other person whose evidence it considers necessary to give oral evidence in the proceedings in relation to any statement contained in the affidavit or to cause written interrogatories to be submitted to the deponent of the affidavit for reply. Both those provisions are not relevant for the present case as no objections were raised under any of them. I have cited the provisions of s 278 (2) this early in the judgment in order to put in perspective the fulminations of the accused when he presented his evidence to the effect that he would have been happy with the production of X rays to confirm the alleged injuries. One can only ascribe such a statement to ignorance of the process involved when an autopsy is conducted. Clearly the need for an X ray pales to insignificance when regard is had to the fact that before submitting a report the pathologist would have made an internal examination of the body parts. Therefore for the accused to appear to challenge the autopsy results while stating such mundane reasons is the fruit of a desperate thought process. In any event, in terms of s 278 (2) the medical affidavit of a doctor who carried out an examination is proof of the facts and opinion of the doctor on its mere production. Nothing else needs to be said about that ill-fated challenge of the accused person. The evidence of the police officers who attended the scene and recovered exhibits, those who conveyed the deceased’s body to hospital for a post mortem and the investigating officer who recorded the accused’s warned and cautioned statement and that of the doctor who HB 37/17 HC (CRB) 26/17 conducted the autopsy was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In addition, the state led evidence from 2 eye witnesses, Isaac Nhimbe and Variet Sajeni. The two state witnesses corroborated each other in material respects. The import of their evidence is that the accused came to the group of car washers who included the deceased, Nhimbe and Sajeni. He complained bitterly that one of them had washed a vehicle the previous day and all of them had left the accused in a difficult situation because when the owner of the vehicle had come to collect his vehicle after the washers had left, he could not start the vehicle. An auto electrician had been engaged who confirmed that water had gone into the electrical system of the vehicle preventing it from starting. The accused had then told them that he was forced to fork out $20,00 from his pocket to pay the auto electrician for his services after the vehicle owner had refused to do so. Nhimbe was quick to point out that although the deceased is not the one who had cleaned that particular vehicle, he took it upon himself to respond to the accused’s claims. He told the accused in his face that he was lying as the engine of the vehicle in question had not been cleaned and that the accused was stating that lie in the hope of gaining something. As a result the deceased and the accused started exchanging harsh words. The accused retorted that the deceased was disrespecting him, interfering in a discussion which had nothing to do with him. When the accused expressed that he was angry with the deceased, Nhimbe says he intervened and calmed the older man down but not before the latter had demanded from the deceased settlement of the water bill which was outstanding stating that he wanted the deceased to produce a receipt showing payment. The accused retreated to his office while the group of washers went and gathered by the entrance to the work place at the gate which was open. Sajeni described the gate as consisting of 2 parts which open to the outside and are held by boulders to keep them open. It was certainly not a sliding gate and at no point did the deceased insult the accused by his mother’s private parts as alleged by the accused. Both witnesses insisted that after the argument over the vehicle which HB 37/17 HC (CRB) 26/17 could not start the accused put the deceased on terms to settle the water bill demanding immediate payment. The deceased responded that the payment would be made as someone was already at the bank withdrawing money to pay. The state witnesses stated that the accused emerged from his office after a short while carrying 4 metal pipes. He again insisted to the deceased that upon his return from wherever he was going he wanted to find proof of payment of the water bill. Sajeni added that he also demanded to find a certain rubber item which was missing but the deceased had pointed out that he knew nothing about it. It was at that point that the accused feigned a blow at the deceased with a pipe forcing the deceased to retreat and in the process his slippers came off and his phone also fell down and disintegrated. The deceased returned to where he had dropped his phone and left his slippers. As he was getting up after picking the phone, the accused struck him on the left side of the head with exhibit 5, the shorter of the metal pipes. He swung the pipe over the head holding it with both hands to strike the deceased causing him to fall down by the side. He hit the ground with the head and never moved. Nhimbe, Sajeni and Gilbert assisted each other to disarm the accused of exhibit 5 which was thrown away. No sooner had they disarmed him than the accused again armed himself with exhibit 6, the longer pipe. Although the deceased was already on the ground, and according to Sajeni was shivering as if he had caught a cold, the accused went on to inflict 3 further blows on the victim who was lying prostrate on the ground. The next two blows struck the deceased on the back of the head while the third one struck him on the right shoulder. The accused then left the scene proceeding to his office. The police arrived and when they tried to question him he drank poison attempting to commit suicide. The two state witnesses maintained that the incident occurred while they were close by and they witnessed everything that happened. In our view they were truthful witnesses who conducted themselves very well as they testified. Nhimbe was quick to concede that it is the deceased who started the shouting match by accusing the accused of lying. Sajeni also conceded HB 37/17 HC (CRB) 26/17 that he had not heard what words were exchanged between the 2 immediately before the assault. Nothing has been pointed as the reason why they would want to falsely incriminate the accused except the half-hearted attempt by the accused to say that they conspired against him while he was detained at both hospital and remand prison. More importantly their evidence chimes to the findings of the doctor who conducted the post mortem. According to Dr Betancourt marks of violence observed included crepitation on palpation of the head, abrasion on left shoulder, lineal abrasions in the frontal region as well as a circular abrasion in the frontal region. Significantly the doctor observed “skull fracture with multiple bone fragments … the fracture is depressed with multiple bones fragments.” The doctor concluded that the cause of death was: ‘(i) severe cerebral oedema (ii) subdural haematoma, subarachnoid haemorrhage skull fracture (iii) head trauma due to blunt trauma.” Rocket science is not required to tell that severe force was used to inflict such serious injuries. In fact the assailant almost reduced the deceased’s head to pulp. It is against that background that the fallacy of the accused’s evidence is demonstrated. He stated that after the deceased had insulted him with the private parts of his 105 year old mother he was so distraught he could not stomach it at all. His immediate reaction was to walk away to his office where he was lucky to be given a piece job to mount a sink at the Lutheran Church. So the initial insult, if indeed it happened, did not inspire him to take up arms to fight the deceased. He was on his way out through the gate while carrying 3 metal pipes (note the contradiction with the 4 pipes mentioned in paragraph 8 of his defence outline) that the deceased again repeated the same insult and poked him on the mouth causing him to trip and fall. As he stood up he thought the unarmed deceased person who was carrying nothing in his hands was about to attack him. As a result, he struck the deceased only once on the shoulder just next to the neck but certainly not on the head. The deceased fell head long and although he was standing HB 37/17 HC (CRB) 26/17 right in front of the deceased as he struck him with exhibit 5, somehow the deceased did not fall on him but onto the pillar of the metal gate injuring his head. He then attributed the head injuries to the pillar of the gate and not himself. The story which the accused person presented simply does not make any form of sense. Not only is it scientifically impossible to fathom, it is also a fantasy by someone who certainly does not expect to be taken seriously. We have already alluded to serious fractures to the head which could have only been inflicted by the blows akin to those witnessed by Nhimbe and Sajeni. The accused tried to underplay his role in the demise of the deceased to ridiculous levels. The accused is shown to have lied about the blows he directed at the deceased, to have lied about the deceased falling onto the metal gate and hurting himself and to have lied about the reason why he tried to kill himself. He says he wanted to die and leave his children behind so that the deceased would remain. But then he had already fatally wounded the deceased. It is trite that where a witness is shown to have lied about an essential aspect of the case, a court of law should reject the entire testimony of such a witness. The policy behind that is that the court will never know when such a witness is not lying. So the entire testimony has to be rejected. And so it is about the accused’s claim that the deceased insulted him using unprintable words about his mother. It just has to be rejected as another lie. What compounds the accused’s woes is that he was visibly a shaken witness who failed to articulate himself and was content to rumble on and on without bothering to address questions directed to him. He was simply an untruthful witness. It is true that in our law no onus rests on the accused to convince the court of the truth of any explanation he gives. If the accused gives an explanation, even if that explanation is improbable the court is not at liberty to convict unless satisfied, not only that the explanation is improbable but that beyond any reasonable doubt it is false. See R v Difford 1937 AD 370 at 373; R v M 1946 AD 1023 at 1027; S v Pisirayi HB-121-16. HB 37/17 HC (CRB) 26/17 In our view the explanation given by the accused on how the deceased died i.e. by hitting his head against the gate is beyond any reasonable doubt false. It is as was stated by McNALLY JA in Matambo v Mutsago 1996 (1) ZLR 101 (S) 103D-E that: “However charmingly, smoothly or impressively Mr Mutsago made these statements, the fact is that they are mechanically impossible. If a witness says he saw water flowing uphill unaided by a pump, you do not judge his veracity by reference to his demeanor. You apply the law of physics.” In our view, the matter is resolved. The accused’s evidence has to be rejected as unworthy of serious consideration. In that regard we commend Mr Mandipa for making the concession that nothing was left of the accused’s defence of provocation, after he himself abandoned it during his testimony. That which he tried to conjure as the trial progressed, of self defence, was untenable either as there was absolutely nothing to defend himself against when the accused pounded the deceased with metal pipes, fortuitous though it was for him to have the pipes in his hands he realised that there was a real risk or possibility that his conduct would cause death but continued regardless of the consequences. Accordingly the accused is hereby found guilty of murder with constructive intent. Reasons for sentence In assessing an appropriate sentence we take into account that the accused is 63 years old. He is therefore in the twilight of his life. He has one minor child and is a widower who also looks after children of a relative. The sentence to be imposed will deprive the children of material support. We recognize that the accused attempted to take his own life which was a sign of regret, if not a perpetuation of a confused state of mind. The circumstances of the case are that the accused and the deceased had exchanged harsh words which infuriated the accused. Clearly he must have harboured a grudge against the deceased whom he accused of disrespecting him each time he was conversing with Sanya. As a senior citizen he was expected to have full control of his temper and to restrain himself no matter HB 37/17 HC (CRB) 26/17 the circumstances. The accused exhibited immaturity and lack of responsibility and recklessness. Behaving like a lumpen he took away the life of a person thereby depriving his family of a father, a brother and a son. It was totally uncalled for. While the circumstances would have called for a very lenghty term of imprisonment, we will tamper justice with mercy having regard to the accused’s advanced age. Accordingly the accused is sentenced to 12 years imprisonment. The Prosecutor General’s Office, state’s legal practitioners Gundu & Dube accused’s legal practitioners