Wayne Dominic Mathetha v The State

### Preamble
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HMA 07-19
CRB 36/18
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WAYNE DOMINIC MATHETHA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE & MAFUSIRE JJ

MASVINGO, 31 OCTOBER, 2018 & 20 FEBRUARY, 2019

Criminal Appeal

Advocate Chinamora, for appellant

Mr M. Tembo for the respondent

MAWADZE J: 	This is an appeal against both conviction and sentence. After hearing both counsel on 31 October 2018 we directed that both counsel file supplementary heads of argument on some point of law as both counsel conceded that they were not prepared to make meaningful submissions on that point we had raised. The supplementary heads of argument were to be filed by 16 November, 2018.

The appellant was convicted by the learned Regional Magistrate sitting at Masvingo on 8 May 2018 of the offence of attempted murder as defined in s 189(1) as read with s 47(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The appellant was convicted after a trial and sentenced to 24 months imprisonment of which 6 months imprisonment were suspended on the usual conditions of good behaviour thus leaving an effective prison term of 18 months. The grounds of appeal in respect of both the conviction and sentence are couched as follows;

“GROUND OF APPEAL

The Learned Magistrate erred at law and misdirected herself by failing to judiciously analyse the credibility of the evidence of the complainant and that of the third State witness Toddy Jimmy regarding the distance at which the appellant shot the complainant and the role which these two witnesses played in attacking the appellant.

The Learned Magistrate erred at law and misdirected herself when she failed to properly analyse the fact that the appellant managed to present all the requirements of self-defence of himself |(sic) and his property.

The Learned Magistrate erred at law when she condoned the conduct of the complainant and Toddy Jimmy who took the law into their own hands by heavily assaulted (sic) the appellant after they suspected that the appellant was in an intimate relationship with the complainant’s wife.

The Learned Magistrate erred at law and misdirected herself when she failed to analyse the totality of evidence presented during the trial.

AGAINST SENTENCE

The Learned Magistrate erred and thus misdirected herself when imposing a sentence which induces a sense of shock and outrage due to its severity.

The Learned Magistrate also erred at law and misdirected grossly when she failed to consider their forms of non-custodial sentence as prayed by appellant in mitigation, especially when one considers that the custodial sentence imposed is less than twenty-four months. (sic)

PRAYER

Consequent to foregoing with regard to appellant’s conviction and sentence seeks the following;

That the conviction and sentence made by the court a quo on 8th May, 2018 be set side.” (sic)

In his oral submissions Advocate Chinamora shifted his ground in relation to the conviction. He submitted that the appellant, while entitled to act in self-defence and in defence of his property, being the motor vehicle, did not meet all the requirements of self-defence and the defence of property as outlined in s 253(1) and s 257(1) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] (The Criminal Code). He submitted that the means appellant used to avert the unlawful attack were unreasonable in all the circumstances and that the appellant should be found guilty of assault as defined in s 89(1) of the Criminal Code it being a permissible verdict as provided for in the Fourth Schedule of the Criminal Code. Apparently this is the same position Mr Tembo for the respondent had taken in his heads of argument. Both counsel were also in agreement that the sentence imposed was unduly harsh and that a sentence of a fine coupled with a wholly suspended prison term is appropriate.

We were however not persuaded by the submission made by both counsel both on the facts of the case and the law. This as already explained caused both counsel to seek leave to file supplementary heads of argument on a point of law. We shall revert to this point later. In order to fully appreciate the issues arising in this matter it is prudent at this stage to summarise the facts of the case.

The charge is that on 28 October 2016 at Utsinda Primary School, Chivi, Masvingo the appellant shot the complainant Joseph Vushe on the lower chest with a 9 x 19 mm star pistol serial number 1294127/71666.

What led to this tragic incident is largely common cause, save for how the actual shooting took place.

The 34-year-old complainant is a member of the Zimbabwe National Army based at 4 Brigade, Masvingo. He is married to one Tariro Mpofu who is the centre of the dispute in an apparent love triangle. Tariro Mpofu was employed as a teacher at Utsinda Primary School in Chivi where she stayed. The complainant stayed in Masvingo town. The appellant whose age is not clear as it is stated as either 33 years or 43 years, also resides in Masvingo town at No. 105 Carry Street, Rhodene. The appellant owns an Isuzu KB 280 motor vehicle registration number ADY 8505 and also the pistol registered in his name for purposes of securing cash in transit.  He is a self-employed businessman and the gun is also for the safety of his residence.

It is not clear from the evidence if the complainant and the appellant were known to each other before. The complainant however said he knew the appellant only by name and that he suspected that there was an improper association between the appellant and his wife. It is common cause that the appellant and complainant’s wife were well known to each other.

On 28 October 2016 the complainant decided to visit his wife at her work place at Utsinda Primary School. Apparently the wife was unaware of the intended visit. The complainant alighted from a bus at a local business centre where he spent some time drinking beer and mingling with acquaintances. The complainant met his uncle Toddy Jimmy who later walked with him to Utsinda Primary School as Toddy Jimmy was going to his residence in the villages.

Meanwhile the appellant drove his motor vehicle from Masvingo to visit the complainant’s wife at the school. He was unaware of the complainant’s visit. The appellant alleges this was a business trip as he wanted to buy some chickens from the complainant’s wife. Indeed, it is a fact that the complainant’s wife had some chickens at the school. What is incredible is that the appellant would decide to go and buy the chickens at night. Worse still the appellant did not drive to the house where the complainant’s wife lived but decided to park his motor vehicle some 100 m from the school gate. From the evidence led the engine of his motor vehicle was switched off and the lights were also off. He was with the complainant’s wife inside the motor vehicle with the complainant’s wife seated on the passenger seat. The doors and windows of the motor vehicle were closed. As per the complainant appellant and complainant’s wife were in an intimate discussion. Given these facts it would be naïve for anyone to buy the appellant’s story that this was purely an innocent and business association with the complainant’s wife. Surely if that was the case he would have simply driven to the residence of the complainant’s wife at the school where the chickens were and not to park some 100m from the school gate. Even if one was to assume appellant did not know the direction to the school as he alleges, how could he have failed to reach at the school when he was some mere 100 m from the school gate. Again it is improbable that any astute businessman would burn fuel to some far flung school in the rural areas to buy chickens when such chickens are easily available in town, worse still at night. The suspicion of an improper association between the appellant and the complainant’s wife are borne from all these factors and are well founded. The appellant’s explanation is not only grossly unreasonable but amounts to taking any reasonable court for granted.

It is common cause that the complainant approached appellant’s motor vehicle as he identified the voice of his wife inside that motor vehicle. Naturally he wondered why his wife would be at that secluded place at night with a male stranger. He approached the motor vehicle at about 2200 hours. He caused the doors of the motor vehicle to be opened. Indeed, his wife panicked and asked the accused to drive to the headmaster’s house at the school probably for the headmaster to intervene in this dicey situation. The accused complied but complainant had forced himself into the motor vehicle. Toddy Jimmy followed on foot.

Upon arrival at the headmaster’s house the infuriated complainant pulled out his wife from the motor vehicle and started to assault her. The appellant sensing the gravity of the situation tried to drive away but the complainant blocked him by standing in front of the motor vehicle inquiring why he wanted to flee. The complainant picked two stones and threw one at appellant’s motor vehicle. The appellant could not drive off as complainant reached out and tried to pull appellant out of the motor vehicle. The complainant removed the motor vehicle keys from the ignition and placed them in his pocket thus immobilising the appellant’s motor vehicle. It is at that stage that the state alleged appellant pulled out the pistol and shot the complainant in the chest and the bullet went through the back of the complainant.

The injuries sustained by the complainant are not in dispute. He was shot with a pistol in the lower chest and the bullet exited at the back. The injuries were indeed life threatening by all accounts. A firearm is a lethal weapon especially if one is shot on the vulnerable part of the body like the chest. The complainant is lucky to be alive. This may be attributed to the fact that no internal vital organs were immediately damaged and he was immediately rushed to Chivi District Hospital and then to Masvingo General Hospital that night. Due to the severity of the injuries he was hospitalised at the biggest hospital in our country which is Parirenyatwa hospital. The medical report tendered as Exhibit 1 was only compiled some 3 months later on 10 January 2017.

The complainant amplified in his evidence the injuries he sustained. He said after he was shot he passed out and had to be hospitalised from 28 October, 2016 to 11 November 2016. He explained that at the hospital further two holes were drilled into his chest in order to drain blood. He is now awaiting a medical board at his work place to determine if he is still fit to remain in the army. The complainant believes he is likely to be discharged as his health is now poor. He has difficulties in breathing, cannot lift heavy items or do any work which is physically taxing. To date he is still under medication. All this evidence is uncontroverted and shows the severity of the injuries the complainant sustained which were indeed life threatening. The charge of attempted murder is therefore proper in the circumstances.

This appeal can be resolved either on the facts or the law or on both. We shall start by addressing the law.

As already explained both counsel are of the view that a permissible verdict of assault is in order as per the Fourth Schedule of the Criminal Code. Both counsel believe that the appellant properly acted in self-defence as provided for in s 253 of the Criminal Code and in defence of properly in terms of s 257 of the Criminal Code. They both argued that the appellant simply failed to meet one of the requirements which was that the means used to avert the unlawful attack were unreasonable hence the permissible verdict of assault.

Advocate Chinamora wrongly relied on s 254 of the Criminal Code which provides as follows;

“254 	When defence of person partial defence to murder

If a person accused of murder was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything that is an essential element of the crime, he or she shall be guilty of culpable homicide if all the requirements for defence of person specified in section two hundred and fifty-three are satisfied in the case except that the means he or she used to avert the unlawful attack were not reasonable in all the circumstances.”

The point which Advocate Chinamora missed is that s 254 of the Criminal Code provides a partial defence to murder where excessive force has been used and not to a charge of attempted murder. This is precisely why we invited further supplementary heads of argument as both counsel relied on the wrong provision of the law.

Assuming that all facts are equal the proper provision which the appellant may rely upon for this court to return a permissible verdict of assault is s 193 of the Criminal Code specifically s 193(2) thereof. This means that to the extent that the requirements of the defence of self-defence are met, except that the means that was used to avert the unlawful attack on his person and motor vehicle were unreasonable, the appellant would be entitled to be found guilty of the offence of assault. The position of the law is therefore very clear. The appellant would be guilty of assault if indeed he acted in self-defence and/or of his property save for the fact that the use of the firearm was unreasonable. The question we have to address however is whether on the evidence placed before the trial court the appellant acted in self-defence and or in defence of his property when he shot the complainant. The manner in which the firearm was discharged or the circumstances complainant was injured is critical.

The appellant has not been consistent on this critical issue. In his defence outline the suggested that the complainant was shot as a result of an accidental discharge of the fire arm. The appellant said at the headmaster’s house he pulled out the fire arm from his waist in order to fire warning shots. He said the complainant however held him which caused the appellant and the complainant to wrestle. As the critical evidence this is what the appellant said in paragraphs 3.9 and 3.10 of the defence outline;

“3.9	Accused (appellant) removed his pistol which was on his waist band and intended to fire warning shots. This complainant tried to disarm the accused person by grabbing him. that is when the two started to wrestle for the firearm.

3.10	As the two wrestled for the firearm, the firearm discharged twice that is when accused heard the complainant crying for help.”

The critical issue here is that the appellant alleges an accidental discharge as per his defence outline not that he shot the complainant in self-defence and of his property.

The appellant maintained this position throughout the trial. At page 72 of the record the appellant while under cross examination on how the complainant was shot had this to say;

“When he was struggling with my arm that is when the firearm discharged.”

The appellant insisted that the firearm was discharged accidentally.

The appellant only shifted ground and proceeded to allege self-defence and defence of his property in his heads of argument. The allegation that this was an accidental discharge was now abandoned. This completely destroyed the credibility of the appellant. The appellant cannot have it both ways, that this was an accidental discharge and also that he acted in self-defence and defence of his property. The issue is very clear. Where one raises the defence of self-defence and defence of property one would have the intention to kill and proceeds to shoot but his or her conduct is excusable on the basis of the requirements outlined in s 253 of the Criminal Code. That is clearly distinguishable from an accidental discharge. On this inconsistence alone the appellant’s case simply crumbles like a deck of cards.

The complainant Joseph Ushe was consistent on how he was injured. He said the appellant shot at him when he was standing an arm’s length from the appellant. Toddy Jimmy corroborate the complainant that when he was shot the complainant was about 6 m away from the appellant. Both the complainant and Toddy Jimmy maintained that the appellant actually took the firearm from the vehicle and fired at the complainant who was a distance away from the appellant. At that critical stage the appellant cannot allege that he was acting in self-defence at all.

The learned Regional Magistrate in our view was correct to reject the appellant’s inconsistent version. We are satisfied that on the evidence placed before the court a quo the defence of self-defence and defence of property is clearly not available to the appellant.

We are satisfied that a proper analysis of the evidence shows that complainant tried to pull the appellant out of the motor vehicle and tore his shirt and was injured as per Exhibit 6. The injuries sustained by the appellant as per Exhibit 6 do not at all show that he was assaulted severely by the complainant. The same can be said of the damage to his motor vehicle which was only in relation to a rear view mirror.

In conclusion it is our view that the appellant shot the complainant in a manner which posed potential danger to the complainant’s life. The appellant has been totally inconsistent in how the complainant was shot. That prevarication clearly proves the appellant’s lack of credibility as compared to the version given by the complainant and Toddy Jimmy. We therefore find no misdirection on the part of the learned Regional Magistrate and would uphold the conviction on the charge of attempted murder.

As regards sentence our view is that the aggravating factors far outweigh the mitigatory factors. The appellant’s moral blameworthiness is very high when one considers his conduct and the injuries inflicted on the complainant. It is clear to us that the appellant was trigger happy. It is simply fortuitous that the complainant is alive. If the court a quo erred it indeed erred on the side of leniency. The appellant deserved an effective prison term of not less than 3 years imprisonment.

In the result, the appeal in respect of both conviction and sentence lacks merit.

Accordingly, it is ordered that the appeal be and is hereby dismissed in its entirety.

Mafusire J. agrees ……………………………………………..

Ruvengo, Maboke & Company, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners