S v Mhunza (303 of 2023) [2023] ZWHHC 220 (16 May 2023)

HH 303-23 CRB 10/23 THE STATE versus LEEROY MHUNZA HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE 22 September 2022 & 16 May 2023 Assessors: Mr Mpofu Mrs Chitsiga Criminal Trial

T M Havazvidi, for the State R J T Kadani,for the accused MUTEVEDZI J: Porinah Nyamayaro (the deceased), a septuagenarian lived in complete peace and relative comfort at her modest rural homestead. Ironically she died a violent death at the hands of an assailant who attacked her at night after she had disturbed him from stealing her property. Leeroy Mhunza (the accused), was apprehended on the same night that the deceased was assaulted and left for dead. He was charged with the crime of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [ Chapter 9: 23] (the Criminal Law Code). It was alleged that on 7 February 2022 at Kagande Village, Chief Masembura, Bindura he unlawfully and with intent to kill or realising that there was a real risk or possibility that that his conduct could lead to death and continuing to engage in that conduct despite the realisation of the risk or possibility, caused the death of the deceased by hitting her with a walking stick all over her body and striking her with stones and bricks several times on the head and the body. The attack caused serious injuries from which the deceased died. The accused denied the charge. He said he knew nothing about the death of the deceased. He was never at the deceased’s homestead at the material time. He did not enter her homestead as alleged. He only knew the deceased as a member of the community in which he lived. The deceased also knew him such that if he had been the perpetrator, the deceased

HH 303-23 CRB 10/23 ought to have mentioned him by name. He further explained that on the night in question, he was returning from a beer drink at the local township when he was apprehended whilst walking home by people who accused him of having murdered the deceased. His captors beat him. He was later handed over to the police who also beat him and forced him to make indications at the crime scene. He prayed for his acquittal. State case At the commencement of the case for the prosecution, the state sought the formal admission into the evidence of several witnesses’ testimonies in terms of s 314 of the Criminal Procedure and Evidence Act [ Chapter 9:07] (the CP &E Act). The defence did not oppose the application. The evidence of witnesses Sylvester Mandizvidza Mhunza, Ben Chinyanga and Cuthbert Mukombwe was formally admitted into evidence as it appeared on the summary of the state’s evidence in terms of s

314. The important aspects of each of the witnesses’ testimonies is as stated below. Sylvester Mandizvidza Mhunza He passed close to the deceased’s homestead on the material date and time. He heard the deceased person’s hue and cry. She was shouting that someone was killing her. He rushed to the nearest shopping centre where he informed two men called Norest and Kupukai about the attack. Together with those men, they rushed to the deceased’s homestead. They found her badly injured. Ben Chinyanga He proceeded to the deceased’s homestead after being informed of the incident. His major role was that he assisted in ferrying the deceased to hospital with the assistance of one Lloyd. Cuthbert Mukombwe He is a nurse at Chiriseri Clinic. He was on duty when the deceased was brought to the clinic injured. She advised him that she had been attacked by the accused. The injuries he observed were a deep cut on the forehead, lacerations on both hands and legs. She was also bleeding from the head and was vomiting. He assisted her. In addition to the above evidence the prosecutor also applied to tender the post mortem report compiled by the pathologist who examined the deceased’s remains. His conclusion was that death was due to severe head trauma. The cause of the deceased’s death was not contentious. Several other exhibits were also admitted with the consent of the defence. These included the weapons allegedly used during the attack. They comprised of a

HH 303-23 CRB 10/23 log which weighed about 300 grams, a half brick with a weight of 1.1 kilograms and three pieces of stone with a combined weight of 7.1 kilograms. Thereafter, the prosecutor led oral evidence from a number of witnesses. Below we deal with that evidence. Ivy Masvosva( Ivy) She was a neighbour to the deceased. The important part of her evidence was that her residence is roughly two hundred metres from that of the deceased. On the fateful night she heard the deceased shouting that there was a thief and she needed help! Accompanied by her uncle Earnest Masvosva, they rushed to the deceased’s homestead. They found her seated but injured. She was bleeding from the head. She could still talk. She described to Ivy and her uncle, the person who had attacked her. In her own words “The assailant was a young male, had tinted hair, had a torch on the forehead and was wearing a black vest with some yellow inscriptions and a pair of shorts.” The witness said the deceased did not however specifically incriminate the accused as in mentioning him by name. What struck the court was that the prosecutor seemed oblivious of the imperfections of the above testimony. Evidence of what the witness was told by the deceased is all hearsay evidence and is generally inadmissible. As will be illustrated later, it can only be admitted if it qualifies as one of the several exceptions to the rule against hearsay. Tendai Nyamayaro He is the deceased’s son. He saw the deceased when she was already at the clinic. Besides what the deceased had already told the other witnesses, she added to this witness that the assailant had a bag around his waist. She also did not mention the accused by name. Vincent Marunya He is the investigating officer. His evidence was immaterial. At times we are left wondering whether prosecutors think that it is a requirement that investigating officers must always testify. It is not. When they have nothing independent from what they were told by witnesses which could possibly add value to the state’s case, there is no reason why they should be called to court. To appear in court and simply parrot the testimonies of witnesses adds no value. The danger it poses is apparent. Prosecutors seek to introduce hearsay evidence via the backdoor. It equally results in a lot of haggling about introduction of extra curial statements without following the prescribed procedures. Samuel Makonese

HH 303-23 CRB 10/23 He is the police officer who recorded the deceased person’s statement. The officer alleges that in it and in addition to the earlier descriptions, the deceased specifically mentioned that the person who had attacked her was the accused. Francis Karape On the night in question the witness heard the information that someone had stolen from the deceased’s homestead. He was at his residence and preparing to take a bath. His wife advised him that there was someone with a torch who was approaching their homestead. He checked and saw the light. The person who bore the torch light heard their voices and suddenly stopped. The witness then inquired who the stranger was. Instead of answering, the person hid behind a bush. The torch light unfortunately still illuminated the bush and was visible. The witness drew closer to the bush where he threw stones towards it. The person took off. He pursued him. Dogs at homesteads around the area started barking. During that time the witness said he then called the aid of his friend called Shingirai who came out armed with a catapult. Together, they followed the light and went ahead of the person to ambush him. Oblivious of their presence ahead of him, the person then heard some sound from the bush. He increased the beam of his torch. The witness and Shingirai got the opportunity to jump out from their hiding place and apprehended the person. He turned out to be the accused. They knew him as a local resident. There was a struggle. At one time the accused actually grabbed the witness’s privates. They ultimately subdued him. What surprised them was that the accused was wearing clothes belonging to one of their neighbours on top of his own. The witness described the clothes as a white shirt, orange cap and a black trousers. He had tinted hair. When they apprehended him, he was going in the direction opposite to where his homestead was. The point at which they apprehended him was about two kilometres from the accused’s homestead. They then took him to Chiriseri clinic as narrated earlier. Nothing material came out of the witness’s cross examination by accused’s counsel. The witness’s evidence remained largely intact. This was a witness who did not know what had transpired at the deceased’s homestead. He was not even aware that the deceased had been severely assaulted. All that he knew was that there was a thief who had stolen from that residence. He appeared very forthright. His demeanour depicted confidence in what he narrated to the court. He was honest not to delve into matters in which he had no knowledge. Even the accused

HH 303-23 CRB 10/23 himself could not allege any motive for the witness to falsely incriminate him. The court fully believed his testimony. It was credible. The defence case The accused was the sole witness in his defence. He stood by his defence outline. He added that his homestead is about two hundred metres away from that of the deceased. He actually referred to the deceased as his grandmother. He had known her for over two decades. On the fateful night he was drinking beer at Chiriseri nightclub a local drinking joint in the area. He left the beer hall with the intention to go home around 2000 hours. The usual road from the shopping centre to his homestead passes through the deceased’s residence. That evening he used a longer route which did not pass through the deceased’s homestead. His explanation for that detour was that he intended to see his workmates to discuss a job they wanted to undertake. It was when he was on his way to his colleague’s place that Francis Karape and Shingirai apprehended him. Contrary to his captors’ testimony, he did not have any torch on his person at the time they apprehended him. He admitted however that he was wearing a black vest, a pair of trousers and that his hair was tinted. Francis and Shingirai took him to Chiriseri Clinic where he was assaulted by a mob which had gathered there. He was taken inside the clinic where the deceased was. She was still alive but did not mention that he was the assailant either by name or by identifying him. He then closed his case. In her closing submissions the prosecutor rightly pointed out that her case depended largely on circumstantial evidence. She further argued that the hearsay evidence she had adduced was admissible on the basis of the exception of dying declarations as provided in s 254 of the CP & E Act. Counsel for the accused also agreed that resolution of the matter revolved around the sufficiency of the circumstantial evidence which was available. He made no submission in relation to the admissibility of the hearsay evidence on which the entire case is hinged. Both counsel referred the court to several authorities dealing with circumstantial

Evidence

The court is grateful for their assistance in that regard. The issues for determination There are two issues which stand out for discussion in this case. The first one relates to the admissibility of the hearsay evidence relating to what the deceased told Ivy Masvosva and other witnesses concerning the description of the person who had attacked her. If that evidence is admissible the next issue is whether it was the accused who attacked the deceased on the night of 7 February 2022.

HH 303-23 CRB 10/23 As already stated, the prosecutor argued that the hearsay evidence relating to the deceased’s description of her assailant to Ivy Masvosva qualifies for admission under the exception of dying declarations. The court’s considered view is that it does not. She sought to rely on the case of S v Julius Dhabeti HMA 53/18 which outlined what is expected for a statement to qualify as a dying declaration. The first of those is that at the time the statement was made the declarant must have been dangerously ill, was suffering from an apprehension of death and had no hope of recovery. Ivy Masvosva advised the court that at the time she arrived at her residence, the deceased was seated although she appeared badly injured. There was no time that the deceased expressed hopelessness of living. In fact she must have been very hopeful because she only passed on seven days after the incident. In most instances where statements are admitted as dying declarations the declarant would have specifically expressed his/her apprehension of death. Admittedly the hopelessness can be inferred from the declarant’s state of health. See the case of S v Last Mbizi HH 453/22. In this case however even the witness Ivy did not think that the old lady was not going to make it alive. It is difficult to see how the deceased’s description of her assailant would qualify as a dying declaration. For those reasons the court is convinced that the prosecutor identified the wrong exception under which the hearsay evidence would qualify for admission. Instead the statement can more properly be described as part of the res gestae. The doctrine of res gestae The requirement of the law is that hearsay evidence is not admissible. In other words a court must not admit as evidence statements that a witness says he or she heard another person say. Hearsay evidence is testimony whose value is tied to the believability of another person other than the one testifying in court. See - Schwikkard P.J. & Van der Merwe S.E. Principles of Evidence, 3rd Edition, 2009, Juta at p

269. In our law, the CP &E Act specifically outlaws the admission of hearsay evidence. Section 253 thereof provides as follows: 253 Hearsay evidence

(1) No evidence which is of the nature of hearsay evidence shall be admissible in any case in which such evidence would be inadmissible in any similar case depending in the Supreme Court of Judicature in England. As is evident from s 253, the application of this rule in Zimbabwean law is intrinsic to its operation in the Supreme Court of Judicature in England. In the case of S v Wellington Gurumombe HH 405/22, I remarked, in relation to dying declarations, that the approach taken by the drafters of the CP & E Act of tying the law to the practices of other jurisdictions is unhelpful. The English common law relating to all the exceptions against hearsay evidence

HH 303-23 CRB 10/23 was overhauled and supplanted by the Criminal Justice Act, 2003.1 It follows that the practice that guided the Supreme Court of Judicature of England was discontinued. By virtue of s 318 of the CP & E Act following the legislated practice of the English is impermissible. Section 318 of the CP & E Act provides that: “318 English laws applicable The laws in force in the Supreme Court of Judicature in England which are applied by this Act shall not include any amendment thereto made on or after the 1st June, 1927, by any statute of England.” Be that as it may the admissibility of the hearsay evidence of a statement which is part of the res gestae remains part of our law. This court draws guidance from the abundant body of authorities available on the subject in this jurisdiction. The exclusionary provision in s 253 is expansive. To mitigate the far reaching repercussions attendant upon it, the law developed mechanisms that made it possible for hearsay evidence under certain circumstances to become admissible. The apparatus are varied. They are collectively called exceptions to the rule against hearsay. A discussion of many of them in this judgment is not necessary. The only one which concerns the facts at hand is the doctrine of res gestae. Put simply res gestae refers to second-hand statements viewed as so reliable that they could be admitted as evidence in a trial where they are repeated by a witness for the reason that they were made as a result of a sudden impulse or inclination without premeditation and at the same time as the event occurred. Recently in the case of S v Mutsure SC 62/21, the Supreme Court cited with approval the dicta in R v Andrews [1987] 1 All ER 513 that: “Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the res gestae, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim’s statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim’s mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion. However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim’s statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence.” 1 https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/res-gestae