Prosecutor General, Zimbabwe v Kavhu (CA 858 of 2015; HH 294 of 2017) [2017] ZWHHC 294 (10 May 2017)

1 HH 294-17 CA 858/15 THE PROSECUTOR-GENERAL versus TRUST KAVHU HIGH COURT OF ZIMBABWE HUNGWE & MUSHORE JJ HARARE, 9 November 2016 & 10 May 2017 Criminal Appeal T Mapfuwa, for the appellant G C Manyurureni, for the respondent HUNGWE J: The respondent was charged with culpable homicide as defined in s 49 of the Criminal Law (Codification & Reform) Act, [Chapter 9:23]. After a trial he was acquitted. The appellant brings this appeal in terms of s 61 of the Magistrates Court Act, [Chapter 7:10]. In terms of s 61 of the Magistrates Court Act, the Prosecutor-General may, with the leave of a judge of the High Court, appeal against the acquittal of the accused in the magistrates’ court if he is dissatisfied with the judgment on a point of law or if the acquittal resulted from a view of the facts which could not reasonably be entertained. As such the onus is on the Prosecutor- General to establish that the appeal falls within the ambit of the Act. Where the ground of the appeal is dissatisfaction with the judgment on a point of law, the point of law must relate to a decision made by the trial court on a legal issue relevant to the acquittal which the Prosecutor-General believes to be wrong and on which the trial court based its acquittal. It cannot simply be a complaint that the magistrate failed to apply his mind to the law or, if he did apply his mind to the law, he failed to apply that law to the facts. Where the ground of the appeal is that the acquittal resulted from a view of the facts that could not reasonably be entertained, the Prosecutor-General must establish that the inference drawn from the primary facts is so inconsistent with logic and common-sense that the judgment is perverse. It is not enough to establish that the trial court made mistakes or was negligent in evaluating the evidence. HH 294-17 CA 858/15 The Prosecutor-General in essence relied on two grounds of appeal which attack the acquittal on the basis that it resulted from a view of the facts which could not reasonably be entertained. In his judgment the learned trial magistrate stated: “The issue for determination is on whether accused person negligently caused the death of the deceased by his manner of driving. So the state’s onus is to prove that accused person’s manner of driving was negligent in the circumstances. And that would only clearly come up from percipient witnesses who could have seen it all happening. But here why would all say the sound drew their attention yet they were at the scene. The final resting place of the deceased was on the road and in front of the stationary commuter omnibus. Now looking closely at the 2 points of impact, Point PP1 shows that the deceased was inside the road but near the yellow broken lane but behind the stationary commuter omnibus whilst point XP1 shows that she was further inside the road and in front of the stationary commuter omnibus. Why would the evaluator indicate two different points of impact. The court is of the view that he should have indicated only one point of impact to suit his investigations. The two points of impact indicates that the deceased also created the hazard that then resulted in the accident which claimed her life……The accused person tried his best to avoid the accident but due to a very short distance he failed to avoid the accident.” Herein lies the failure by the magistrate to consider the evidence placed before him and assess its impact on the issue before him. First, the witnesses who gave evidence state that the deceased was going back to the bus stop which the driver had gone past. None of them testify that she was crossing the road. The earliest evidence gathered by the police detail from Mazowe Traffic and recorded in the traffic accident book confirm that the deceased was knocked down behind the stationery commuter omnibus. There was evidence of floor polish left on the tarmac to mark the point of impact. This also provided real evidence which corroborated the two witnesses who heard the sound of the impact and found her sprawled on the grass verges of the left lane for Bindura-bound traffic. The learned trial magistrate did not indicate why he disbelieved the witness who told the court during trial that they lifted the deceased from the grass verges of the road and placed her onto the tarmac in order to render first aid. That none of the witnesses did not see the accused hit the deceased only confirms the fact that these two witnesses were honest in their testimony. They should have been believed. The court erred in this regard. Secondly, the learned trail magistrate concludes that because the Traffic Accident Evaluator showed two points of impact therefore the deceased posed a hazard to the accused is illogical. The points of impact indicated by the evaluator came from the witnesses and the accused. The State witnesses say that the deceased lay on the grass verges after she was knocked down by the accused. (Record page 53). She was then taken onto the tarmac in order HH 294-17 CA 858/15 to render first aid. Why the court disregarded this evidence is a matter of curiosity. No reasons were given in the judgment why this evidence was rejected. It shows that the deceased in all probability was not crossing as claimed by the accused. It also would indicate that she was struck when she was somewhere behind the stationary commuter omnibus from which she had disembarked. In these circumstances, the fact that the two state witnesses, Tinashe Makwara and Knowledge Maravanyika’s evidence ought to have been found to be credible as they did not seek to guild the lily by claiming that they had seen how she was struck. The facts which were established at trial are that the deceased disembarked from a stationary commuter omnibus. She traced her steps back along the road towards a bus stop where she ought to have been dropped. It was getting dark. Vehicles had their lights on. The accused came from behind the stationary commuter omnibus towards the deceased. He failed to see her in good time. He struck her and she fell off the roadside on the grass verges. Accused only brought his vehicle in front of the stationary commuter omnibus. The deceased was lifted and placed onto the tarmac in order to render first aid. She was ferried to Bindura Hospital but was pronounced dead on arrival. The State alleged that the accused was negligent in one or more of the following particulars; he failed to keep a proper lookout; he failed to stop or act reasonably when an accident seemed imminent; he was travelling at an excessive speed in the circumstances. As I have demonstrated, the accused struck the deceased who was walking in the same lane in which he was driving. What this means is that the accused did not see the deceased well enough to be able to bring his motor vehicle to a stop before hitting her. This could be a result of either of the two factors: that he was not keeping a proper look out or that he was travelling at a speed excessive in the situation he was faced with. In either situation, as a motorist, he was negligent as he should have been able, had he been keeping a proper look out, to see a pedestrian and avoid hitting her. In S v Mtizwa 1984 (1) ZLR 230 (HC) this court observed as follows: “As part of the overall exercise in determining degrees of culpability in driving cases, it is also often necessary to decide whether the conduct of the driver consists of "ordinary" or "gross" negligence. The difference is one of degree and in each case the Court must essentially make a value judgment. In Cooper's Motor Law Vol 1, 509, the following helpful test is suggested: Did the accused, judged according to the standard of the reasonable ‘(i) man, drive in a manner which was reasonable in the circumstances? HH 294-17 CA 858/15 (ii) If not, would a reasonable man, aware of all the circumstances, including those circumstances of which the accused was or must have been aware, consider the latter's departure from the accepted norm so great that his driving should be stigmatised as gross negligence?’” Applying the above criteria to the present case, it is my view that the accused was negligent and must be found guilty of culpable homicide. I therefore make the following order: (1) The verdict in the court a quo is set aside and in its place a verdict of guilty of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] is substituted. (2) The registrar is to arrange for the accused to appear before this court for sentencing. MUSHORE J agrees…………………… National Prosecuting Authority, legal practitioners for the appellant Manyurureni & Company, legal practitioners for the respondent