The State v Andrew Tshuma

### Preamble
1
HCC53/23
CRB92/23
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THE STATE
versus
ANDREW TSHUMA

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 31, October 2023

Assessors: Mr. Mutombwa
                Mr. Manyangadze

Criminal Trial

T.H. Maromo for the State
M. Mutsvairo for the Accused

BACHI MZAWAZI J:

Introduction.

Andrew Tshuma, a male adult aged, 39, stands accused of the murder of his roommate Prince Guvheya over a trivial issue arising from accused’s lack of hygiene.  He has been charged of contravening s47(1) of the Criminal Law Codification and reform Act, [Chapter 9:23], herein after, the Criminal Law Code.  Initially there were three suspects but two where never arrested and are on the run.

Brief Factual Overview

The allegations and common cause facts are that, on the 9th of January 2021, at around 9pm at night the accused person arrived home, a room he shared with two others including the deceased. All the three occupants of that room where artisanal miners who worked together. Upon arrival the accused retired straight to bed much to the chagrin of the visibly drunk deceased who admonished him to go take a bath as he was the source of bed lice in the shared room.

From the State papers, a fight then ensued starting from the room ending up in the adjacent yard.  Elliot Dungeni and Tarusangana Magundani, fellow mining compatriots and neighbors of both, now fugitives from justice intervened in the struggle after responding to a distress call from the accused.

It is a common cause fact that the deceased was assaulted and is said to have succumbed to the injuries sustained thereafter three days after the incident. Exhibit 3 on record, the post mortem report, described the cause of death as, acute respiratory insufficiency, cardiac respiratory failure and menengenciphalitis.  There was also mention of an overweight heart due to excessive work over load resulting in its collapse termed cardiac respiratory failure by the medical expert, Dr. Trynos Mundete who testified in court.

Accused’s Case and Defence

Accused person pleaded not guilty to the offence as charged.  In his defence, he denied ever assaulting the deceased, who was much older than him and of an overbearing physic or stature. It is his testimony that, after he had been accused of spreading bed lice, he gathered his bedding to go to seek overnight shelter elsewhere. This infuriated the visibly drunk house mate who then head butted him.  He did not stop there but picked an iron bar aiming at the accused who in turn, shouted for help from the neighboring community at the same time blocking and wrestling to dispossess deceased of the same.  The struggle then filtered from inside the room into the compound yard with each man holding steadfastly to the iron bar.

It is the accused’s testimony that the two mentioned young men came after heeding his distress  call who came to his rescue were not his friends as his choice of friends is illustrated by those whom he elected to share room which included the deceased. What both the deceased and the accused had in common with the two, Elliot Gungeni and Tarusangana Mugandani is that, they were all artisanal miners who resided in one single partitioned building block. Hence, they were neighbors.

His sequence of events thereafter is that the two interveners, firstly tried to restrain the two who were struggling for the possession and dispossession of the iron bar but the deceased upon seeing them and listening to their inquisition he abandoned his struggle with him and charged at Tarusarira Mugandani.  Elliot Dungeni, sensing danger attacked the deceased at the back with an iron bar.

The accused attested that he then took that opportunity to quickly go back inside the room to collect his bedding for his work place where he was to spend the rest of the night. As far as he was concerned, remaining at that homestead meant further beatings from the deceased, so he left without checking the deceased’s condition, nor did he make any follow-ups on him as in his view it was safer to stay at the mining site for a while until the storm had calmed. He denied friendship with the two suspects nor acting in common purpose with them.  The defence case rested on the accused.

The State Case and Evidence

It is the State case that accused person assaulted the deceased with an iron bar as borne in a statement recorded from the deceased by the police a day after the assaults. The state’s recreation of events is that the accused indeed was being fought by the deceased, but in the process, he called his two friends who then joined the struggle on his side teaming up against the deceased thereby inflicting the fatal wounds.

The State in their written submissions indicated that they were armed with both direct and circumstantial evidence to nail the accused on a charge of murder with legal intent. They however, conceded, properly so, that from the common cause facts there is no evidence that the accused planned, premeditated or set out to end the life of his roommate on that day and time. Therefore, he lacked the requisite mens rea to bring about the deceased’s death.

In support of their case, the State tendered the deceased’s “dying declaration”, in quotes, the pathology report, the sketch plan and five summarized written witness’s statements by consent in terms of sections 276, 278, 279 and 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].  Oral evidence was led from five witnesses, one an independent person, a medical doctor and three police officers including the investigating officer.

Issues

Whilst the common facts of what the source of dispute was, who provoked the situation and was the aggressor are not in contention, the State   legally bears the onus to prove beyond any reasonable doubt, two issues which are the points of departure between themselves and the defence. These are couched as follows:

Did accused ever assault the deceased on the day and time in question?

Where Dungeni Elliot and Tarusangana Magundani friends of the accused who in concert assaulted the deceased inflicting the fatal injuries resulting in his passing on?

The law on the burden of proof

One of the fundamental principles in the   Criminal justice system is that   in criminal litigation, an accused person has no obligation to prove his defence. His word or mere say so if   probable is enough until proven otherwise. The task is placed on the State to rebut the word of the accused and prove its case beyond a reasonable doubt.

In S v Makanyanga 1996 (2) ZLR 231 at 236, it was postulated that, proof beyond a reasonable doubt demands more than that a complainant should be believed, and the accused disbelieved. It demands that a defence succeeds wherever it appears reasonably possible that it might be true. See the locus classicus, R v Difford 1937, Kereke v Maramwidze and Anor SC86/21 and Pia Ngwayi v First mutual Health Com”pany SC/19 amongst others..

More recently in Mungwira and Anor v the State HH329/21 the honourable Hungwe J sitting as a court of Appeal with Honourable WaMambo J, made the following interesting observations,

“The State is required, when it tries a person for allegedly committing an offence, to prove the guilt of the accused person beyond a reasonable doubt. This high standard of proof - universally required in civilized systems of criminal justice - is a core component 4 HH 329-21 CA 316/12 and CA 259/12 REF CRB 942-3/12 of the fundamental right that every person enjoys under the Constitution, and under the common law, to a fair trial. It is not part of a charter for criminals and neither is it a mere technicality. When a court finds that the guilt of a person has not been proved beyond reasonable doubt, the accused is entitled to an acquittal, even if there may be suspicions that he or she was, indeed, the perpetrator of the crime in question. That is an inevitable consequence of living in a society in which the freedom and dignity of the individual are protected and respected. The inverse- convictions based on suspicion and speculation- is the hallmark of tyrannical systems of law.”

Notably, because of its marked importance   the presumption of innocence until proven guilty principle, was transcended from just being a common law concept into a constitutional right, enshrined in s70 (1) (a) of the Supreme law of the land, Amendment No.20 of 20213, the Constitution. It resonates with the principle of a right to a fair trial or hearing amongst other accused rights constitutionally provided and protected. As such it is not taken lightly in criminal justice administration and delivery.

In order to address the two issues raised herein the State has placed reliance on exhibit 2 as its res gestae evidence and spring board to demonstrate that accused did assault the deceased on the day and time and in the manner alleged.  In addition, that the accused acted in common purpose with the two runaways as they were his colleagues and assaulted the deceased in the manner alleged thereby causing his death.

It is the State’s case, that a day after the assaults on the 10th of January, 2021, the deceased made a statement, which became his last to the police. In that Statement he named his assailants as accused, Dungeni and Mugandani. The statement mentioned that after the initial confrontation between himself and the accused, accused left and came back with the two who then teamed up to assault him.

It is the State’s further submission that, this statement is further corroborated by the statements of the recoding police officers recorded and witnessed the same. Therefore, since it was allegedly made a day after the incident it meets the threshold of spontaneity and contemporaneity test which are essential ingredients dictated by case law in the application of the res gestae principle. See, S v Eddy Mpofu & Steven Mpofu HB35/07 and Mutsure v S SC62/21.

The law on Dying Declarations, Res gestae and Hearsay Evidence

The State was careful enough not to mention the statement as a dying declaration since a dying declaration is a statement made by a person in anticipation of death, whereas, the res gestae concept applies to statements made by a person who is either dead or incapacitated mentally or physically or in any other legally recognized inability.  See, Mutsure v S -SC62-2021.

What the dying declaration and res gestae   have in common is that both are pieces of evidence. However, the declarants or deponents of either one of them will not be in a position to authenticate or attest to the veracity of their statements in person due to death or other incapacitation and or unavailability. They both are an exception to the exclusionary rule of evidence.

As a general rule, at law hearsay evidence, which is information relayed by a third party who cannot be availed for cross examination is inadmissible.  There are however statutory exceptions or other situations such as the two highlighted above wherein such evidence is permissible after satisfying set standards. See, R v Andrews [1987] ALLER, “Hearsay Evidence an Outline” by W.A. Hope in 1961, Rhodesia and Nyasaland Law journal 130, Section 253(1) of the Criminal Evidence and Procedure Act.

In our jurisdiction, the res gestae statement is provide for in section 253 (2) of the Criminal Procedure and Evidence Act which reads: -

“(2) When evidence of a statement, oral or written, made in the ordinary course of duty, contemporaneously with the facts stated and without motive to misrepresent, would be admissible in the Supreme Court of Judicature in England if the person who made the statement were dead such evidence shall be admissible in any criminal proceedings if the person who made the statement is dead or unfit by reason of his bodily or mental condition to attend as a witness or cannot with reasonable diligence be identified or found or brought before the court”.

On one hand section, 254 of the same Act caters for a dying declaration perse, it says that a dying declaration made by any deceased person upon the apprehension of death shall be admissible or inadmissible in evidence. Clearly, section 254 has an inherent qualification or set standard for such a statement to be admitted into evidence, which is the apprehension of death at the time of its formulation. See Professor G. Felto, The Magistrates Handbook. 2021 edition, JSC, UNDP at page 327.

Whereas on the other hand, for the statement in section 253(2) which has no internal limitations and may on the face of be admissible as is, the Common law has made inroads by   providing safe nets or mechanism to guard against potential fabrications, concoctions and misrepresentations when the statement is made after a considerable period when the stressful environment had ceased. This is so because it is not uncommon for humans after further reflection to underplay their own role or to exaggerate that of others. Hence, the observation of the contemporaneity and spontaneity tests.

The meaning, purpose and the standard proof expected for the res gestae evidenced to be acceptable has been superbly delineated in the English case of R v Andrews [1987] ALLER 513 above where it was observed 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. The appeal would accordingly be dismissed. See, Ratten v R [1971] 3 All ER 801 applied.R v Beddington (1879) 14 Cox CC 34.”

The authors, L.H Hoffman and D.T. Zeffertt, The South African Law of Evidence 4th edition, Butterworth, page153, consider the res gestae evidence as part of the story by commenting that, “The central notion of the doctrine therefore is that the evidence may be admissible either because it is itself in issue or a fact relevant to an issue or because it is so closely associated in time and circumstances with the translation under investigation that it has a high degree of relevance”.

S v Tuge 1966(4) SA 565 (A) outlines some of the factors that courts take into consideration in assessing res gastae evidence, which are but not limited to following;

The original speaker must be shown to be unavailable as a witness.

There must have been an occurrence which produced a stress of nervous excitement.

The statement must have been made whilst the stress was still so operative on the speaker that his reflective powers may be assumed to have been in abeyance

The statement must not amount to a reconstruction of events.

State Evidence and Assessment

Having explored the principles underlying the res gestae evidence, it is apparent that the statement that is being relied upon by the State, in the present matter falls within the realm of s253(2).  It is res gestae evidence. Ordinarily an interrogation on whether or not it meets the criterion and tests laid out in the above authorities should have been the next stage that lies for determination before admissibility.

Interestingly, at the commencement of trial this piece of evidence was produced and admitted as part of the evidence on record. Its admissibility is no longer in issue but its authenticity and its probative value tested against all the evidence. More so when the State has submitted that this statement has been corroborated by the evidence led from the police officers who recorded and witnessed its recordings. Inevitably, this necessitates the sampling and analysis of the State witnesses’ evidence.

Andrea Siachilima

Andrea Siachilima’s evidence is credible in that, he mentioned both what he had gathered from one Elliot Gundeni, a suspect and what he actually heard with his own ears from the deceased. He did not exaggerate because as a friend and work mate of the deceased he would simply have chosen to rest his case on the hearsay evidence from Gundeni which tended to incriminate the accused person and at law inadmissible.

This witness stated that after learning of the assault on his friend he visited him at his residence at around 2100hrs on the 9th of January 2021. He found him lying on his back, bleeding from the nose, had a swollen face and a small cut at the back of his head. He had first -hand observation of the deceased’s physical state and visible injuries. Of note, he attested through his written statement that the deceased mentioned his assailants as Elliot Dungeni and Tarusarira Mugandani at the exclusion of the accused’s name. He then cleaned the deceased’s wounds and assisted him to sleep.  A key feature of this witness’s evidence is that he is the one who made a police report the following day, the 10th of January, 2021. Andria’s evidence was by consent and stands uncontested.

Chiluwe’s Evidence

The evidence of Trymore Chiluwe buttresses that of SiaChilima in the crucial aspects of the identity of the assailants as related to him by the deceased. Chiluwe is the first person to get to the deceased soon after the assault. He was the third roommate who shared a room with the two accused and the deceased. He stated that he was in the room but in deep slumber. He only awoke to see the accused packing his bedding and about to relocate elsewhere for the night.

Upon following outside he saw the deceased lying in a pool of blood and immobile, but was able to move a few minutes later into the room. Upon enquiry from the deceased, he was briefed of the assault and the named offenders, were Dungeni and Mugandani.  What is evident is that the accused’s name was not mentioned by the deceased on this day and time to this witness who happens to be the first to discover the deceased after the event, before Siachilima. There is also hearsay evidence portion added to his statement which is of no consequence given the exclusionary rule of evidence.

Patrick Guvheya

Patrick Guvheya is the father of the deceased. His evidence has already been admitted into evidence by consent. He was informed of the injuries sustained by his late son by Andria Siachilima a day after the incident. When he visited the homestead, he did not observe any visible injuries but his son was disoriented, could neither feed, talk, move or recognize him. He stated that his late son then passed on the 12th of January 2021. The crucial part of his evidence is that on the 10th of the alleged date of the written statement, his son could neither talk, eat or recognize him. This witnesses’ testimony speaks to taking his son straight to his homestead where his own neighbors made efforts to feed his son but failed. In fact the father said that the deceased spent the whole night in his room and was struggling to move his legs and had difficulties in breathing. There is no mention of a stop- over at the police station given the deceased’s state.

Desire Munsaka

Desire Munsaka gave oral evidence in which he departed materially from his written evidence after cross examination by Mr Mutsvairo, counsel for the accused. On paper he said the accused had escaped into hiding after the murder and he is the one who apprehended him. In court he conceded that there was no proof that he was hiding as there was evidence that he was camping a few meters from the mining site where he worked milling with co-workers. He also attested that upon accosting the accused he expressly showed ignorance of what transpired after he left his residence. This witness said accused had no idea that the deceased had passed.  He actually corroborated the defense case that, accused left in fear and was also afraid to go back thinking the deceased was still alive and would further assault him. This witness also supported the accused’s version that on confronting him he denied ever assaulting the deceased and readily asked the witness to go enquire from Dungeni who was the assailant.  This witness in essence, did much harm than good to the state case.

Dr Trynos Mundete

Dr Trynos Mundete as already highlighted above, was called as a witness to expatiate on the findings made on the post mortem report. He explained some but not all the medical terms as led by the State. His conclusion was that the deceased had an overweight heart which clinically is an indication of an underlying condition and that the swelling and fluid which was dictated in the deceased’s body could have been as a result of a trauma or a blow directed at the thorax which comprises the lungs.  His further, explanation was that the malfunctioning of the lungs due to the excess fluids causes an extra burden on the heart which then collapses due to increased unusual pressure and function causing cardiac respiratory failure. The doctor also depicted some swelling of the forehead as a result of blood clots in that area and that of the brain tissue. The terms like meningoencephalitis, what it is and its likely causes were not explained.

Onias Sibanda

Notably, Onias Sibanda is the police officer who claims to have recorded a statement from the deceased on the 10th of January, 2021 in the company of others. He admitted under cross-examination that assault victims have a tendency to exaggerate facts when reporting but maintained that the accused was mentioned as one of the culprits alongside the two fugitives from justice already mentioned.

Godwin Nhira’s Testimony

Godwin Nhira testified as the officer who recorded a statement from the above mentioned third roommate, witness Trymore Chiluwe, who directly interacted with the deceased before he died.  In court he repeated the evidence of his colleague, Sibanda claiming that the deceased mentioned that accused was one of his assailants which contradicted the one he had actually recorded and signed made by Trymore Chiluwe.   He then conceded to the contradictions when placed under fire by Mr Mutsvairo for the defence.

Most of the police officers’ testimony was a carbon copy of the other. All the police officers, stated that the witnesses placed the accused at the scene of the offence and at the time of its commission as well as his involvement in the whole saga. However, each and every one of them conceded that the information they got may be distorted as complainants and or witnesses have a tendency   to exaggerate and underplay their own roles.

Further analysis of Evidence

An analysis of the above witnesses’ statements and a thorough examination of all the evidence herein convinces the court that the alleged res gestae statement of the 10th of January 2021, was not made by the deceased meaning it ceases to be evidence.  We are told that it was made on the 10th of January 2021, by the accused himself but this is not supported by the evidence.

Onias Sibanda, said he is the one who recorded the statement from the deceased at the ZRP Mayflower base on the 10th of January 2021. He saw no visible injuries but a swollen face. The other police officers attested seeing the deceased making the report at the police station, did not make references to any injuries but in court stated that they also saw a swollen face. 
     In contradiction, firstly, the issue of injuries, Trynos Chiluwe and Siachilima who attended to the deceased saw visible injuries and blood. The three attested to the struggle the deceased had in movement.  Siachilima talked of injuries at the back of the head. Even if it can be said that Chiluwe and Siachilima saw the deceased on the 9th of January therefore on the 10th the injuries could not have been invisible or subsided.

The second issue is that of mobility, Chiluwe and Siachilima spoke to the struggles the deceased had in moving soon after the event. Patrick Guvheya visited the deceased on the 10th of January. His above evidence is very clear straight forward and stands uncontested, the same day the 10th, of the alleged recording of the statement in question, his son could neither eat or talk and could not walk. So, when then did he go to the police station to have a statement taken?

A father cannot lie that, on the 10th January 2021, his late son could neither walk, talk, eat or recognize him. He had difficulties in breathing. Yet on the same day the police officers could only see some swelling and no marked visible injury.  Patrick Guvheya never made any reference of parting with his son from the 10th until his passing on the 12th of January 2021. If they had passed through the police surely, the father of the deceased would have not failed to mention such an important fact. Surely, common sense and logic spells out that this person who could neither talk, eat and had difficulties in breathing could not have made that statement on that very day.  It stands to reason why Patrick Guvheya omitted such a significant piece of evidence, let alone Chiluwe and Siyachilima.  It is our view that the evidence of Patrick Guvheya and Trynos Chiluwe is more credible.

To put the last nail on the coffin, Siachilima stated that he is the one who visited the said police station on the 10th of January, 2021 and made a report. These three witnesses were and have already been ruled credible. The evidence of the police witnesses pitted against that of the independent witnesses above differs materially. Siachilima’s evidence was the most damning piece of evidence utterly destroying the police officers’ evidence and credibility. The court finds that the evidence of the police officers was tailor made to suit each other and was nothing but a shameful lie. It has failed the credibility test.

A finding on the authenticity of exhibit two has already been made.  It is thus clear that the State failed to discharge the burden of proof legally thrust upon it to prove that the accused person assaulted the deceased. The evidence of Chiluwe and Siachilima corroborates the accused’s defence and bails him out. He was the victim and did not assault the deceased. His evidence was credible.

In summation, since the basis upon which common purpose doctrine was founded has been discredited and rejected, that is, the res gestae document, it is obvious that there is no other evidence, facts, let alone any proved facts where this court can justifiably draw an inference of an existence of a friendship between the accused and the two fugitives from justice. Neither is there any direct or indirect evidence that on the day they congregated or associated not as peacemakers to restrain their neighbors but to assault the deceased.    In the absence of such facts, let alone proved facts, there is neither circumstantial evidence to talk about nor any reasonable inference to draw.

The doctrine of common purpose  entails where two or more persons agree to commit a crime by prior agreement, either expressly or impliedly or where there is no prior agreement by actively associating in the commission of the crime. See, Maringosi v The State, HH02/09 Nkomo and Anor v Attorney General of Zimbabwe  and Others SC 187 /94 Sithole and Another v S ZAGPPHC169(20 February, 2017) In this case, what is on record is the accused’ own version which disputes the existence of any friendship between himself and the two suspects on the run. What stands uncontroverted is the accused’s word that his choice of friends is illustrated his choice of roommates and those where his friends including the deceased.

As regards circumstantial evidence, the two cardinal rules on circumstantial evidence have been stated to be:

The inference to be drawn must be consistent with all the proven facts.

The proven facts should be such that they exclude every possible inference from them save the one to be drawn.

In rendition, there are no proved facts to allow for any reasonable inference to the guilty of the accused. No direct or circumstantial evidence pointing to the guilty of the accused has been proved.  See Sv Mada HCC30-22, Sv Shonhiwa 1987 SC 215, R v Blom 1939 AD 188, Zacharia Amos, Simango v S SC-42-14, Abraham Mbovora v S SC-75-14.

Disposition

In conclusion, from all the produced and admitted evidence of record, the evidence of Andria Siachilima, Trymore Chiluwe and Patrick Guvheya significantly stands out. They were all close to the deceased and the accused in one way or the other.  The first two interacted and talked with the deceased soon after the incident and were informed first hand of the names of actual perpetrators with the exclusion of that of the accused by the deceased on the same day within a short space of time after the incident. We agree with Mr Mutsvairo for the defence that it is the testimonies of Chiluwe and Siachilima which is res gestae evidence. They received firsthand information from the deceased which exculpated the accused thereby corroborating accused’s defence, that he never assaulted the decease

It is the court’s considered view that, the statement made to the police on the 10th of January 2021 was not made by the deceased. Therefore, though admitted it was not res gestae evidence and of no probative value.  The court, is thus left with no choice but to believe and to acquit the accused. The State has failed to prove beyond any reasonable doubt that the accused committed the offence as charged or to sustain any other competent verdict.

Accordingly,

Accused person is found not guilty and acquitted.

National Prosecuting Authority for the State
Mushonga, Mutsvairo & Associates for the Accused.