Artwell Nyoni v The State

### Preamble
1
HH 412-13
CA 13/12
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ARTWELL NYONI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAVANGIRA J

HARARE, 12 and 20 November 2013

IN CHAMBERS IN TERMS OF SECTION 35 OF THE HIGH COURT ACT [CHAPTER 7:06]

MAVANGIRA J: The appellant was arraigned before the magistrate at Kadoma on a charge of assault as defined in s 89(1)(a) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. He was convicted on his own plea of guilty and was sentenced to 4 years imprisonment of which 1 year was suspended on the usual and appropriate condition of future good conduct. The appellant now appeals against both conviction and sentence.

The allegation against the appellant was that on 15 April, 2011 at Kanyemba Mine, Battlefields, Kadoma, he assaulted the complainant once on the right cheek and on the left leg realising that there is a real risk or possibility that bodily harm may result. The facts placed before the court disclosed that the appellant threw stones at one Pheke with whom he had had an altercation which had now degenerated into a fight. One stone struck the complainant on the right cheek and another struck him on the left leg in circumstances akin to the deflected blow scenario.

During the injury by the court a quo, the appellant stated that he did not intend to cause injury to the complainant. This is an important aspect on which the court a quo ought to have focused its inquiry with greater care in order to establish whether or not the appellant realised that there was a real risk or possibility that he could cause bodily harm to the complainant.

In the Attorney General’s notice filed in terms of s 35 of the High Court Act, [Cap 7:06], the following pertinent aspects are highlighted as aspects on which the court a quo ought to have further inquired:

“At what stage of the fighting with one Pfeke did appellant throw the stones?

How far apart were the stones that were thrown in the direction of the complainant?

The size of the stones.

The distance (in metres) between the appellant and his intended victim.

The distance (in metres) between the appellant and the complainant

The distance between his intended victim and the complainant

The number or appropriate number of people who were at the area”.

The Attorney General’s submission is that an inquiry into these aspects would have

assisted the court a quo to satisfy itself whether the appellant realised that there was real risk that he would occasion bodily harm on the person of the complainant and whether he was admitting to the essential elements of the offence as charged. The submission is sound. So is the reference to S v Tachiona 1994(2) ZLR 402(H) where the following was stated at 407F to 408C:

“…Where an accused person says he did not realise or foresee that serious injury would result from his conduct, it is no answer that he nevertheless admits being reckless because recklessness must be preceded by foresight of the consequence in order for there to be proof of dolus eventualis.  ……If the magistrate thought that the accused’s denial of an intention to cause grievous bodily harm may have been the result of a lack of appreciation of the import of the question on their part, he should have probed further by putting the same question in a different way. The following are some of the questions that could have been put to the accused in order to elucidate their denial.

Did you know or realise that your actions were likely to cause serious  bodily harm to the complainant; or

Did you realise that you were using a lethal weapon to assault the complainant and that such a weapon could cause serious bodily harm?

There can never be an exhaustive list of the sort of questions that can be put, nor can there be a limited number of ways in which the questions should be put ……”

It is also further correctly observed that a full inquiry would have assisted the court a quo to satisfy itself whether there was a defence in law open to the appellant. Furthermore, that a full inquiry would have afforded the court a quo vital information which would have assisted it in deciding whether the applicant had contravened s 89 or s 90 of the Criminal Law (Codification and Reform) Act. The following apt submission is made:-

“Though negligently causing serious bodily harm is a permissible verdict of a contravention of s 89, in the absence of adequate facts one would not know which section was contravened. This is more so important bearing in mind that the penal provisions of the two sections are clearly different”.

For lack of a full inquiry as discussed above, the appellant’s conviction is unsafe and cannot stand. Both the conviction and sentence must therefore be set aside for these reasons.

Both the appellant’s counsel and the Attorney General have urged that the matter be remitted for trial de novo before a different magistrate. In view of the fate of this appeal, that also appears to us to be the proper manner of disposal of this matter.

In the result it is ordered as follows:-

The appellant’s conviction be and is hereby quashed.

The sentence imposed on the appellant by the court a quo be and is hereby set aside.

The matter is remitted for a trial de novo before a different magistrate.

HUNGWE J: agrees ……………………………