HH 2-2004
Crim. Appeal 159/03
AMOS REZA
and
ROGERS CHIWASHIRA
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHINHENGO and MAKARAU JJ
HARARE 31 July 2003 and 11 February 2003
Criminal Appeal
Mr Chikowero for the appellant
Mr Tokwe for the respondent
CHINHENGO and MAKARAU JJ: The appellants are members of the
Zimbabwe Republic Police. They are aged 24 and 62 years respectively. On 5
September 2002, they appeared before the magistrates’ court at Chivhu, facing one
count of assault with intent to cause grievous bodily harm. They both denied the charge.
After trial, they were convicted and sentenced to 6 months imprisonment, 3 of which
were suspended on condition of good behaviour. They have appealed to this court
against the sentence only.
The facts giving rise to the charge are as follows:
On 28 March 2001, the complainant went to the local veterinary offices to obtain
a permit to allow him to move certain livestock from one point to another. At the
veterinary offices he was accosted by the second appellant and taken to the police post
at Masasa, near Chivhu. The first and second appellants were investigating a stock theft
case and suspected the complainant to be the thief. At the police post, the two appellants
jointly assaulted the complainant by beating him under the feet with a sjambok. This
was in a bid to make him admit to the stock theft charges. The bid failed and the
complainant was released.
After his release, the complainant sought medical attention and was attended to
by a Doctor Regis Kabanda. A medical report was subsequently compiled and was
adduced into evidence during the trial.
As indicated above, the appellants appealed against sentence only. However,
after perusing the record, the conviction of the appellants on a charge of assault with
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intent to cause grievous bodily harm concerned us. During the hearing of the appeal, the
issue of the propriety of the conviction of the appellants on the charge was brought to
the attention of counsel. Both were of the view that the conviction was proper.
The essential elements of the offence of assault with intent to cause grievous
bodily harm have been set out in a number of cases. See R v Edwards 1957 R & N 107,
S v Melrose 1984 (2) ZLR 217 (SC), S v Tachiona & Anor 1994 (2) ZLR 402 and S v
Dube 1991 (1) ZLR 218 (SC).
The medical evidence adduced during the trial should have been supplemented
by viva voce evidence of the doctor. Firstly, while the complainant was assaulted on 28
March 2001, the medical affidavit was deposed to in July 2002 and indicates that the
complainant was examined for the purposes of the affidavit, on 24 April 2001. This was
some considerable time after the assault.
Secondly, the complainant testified that he sought medical attention immediately
after the assault. He further testified that the medical report that was compiled
immediately after that attendance went missing at the police station. In view of this
development it was necessary for the doctor to be called to testify as to his findings on
the first examination. This, unfortunately, was not done.
Thirdly, the complainant testified that the appellants only stopped assaulting him
when he started bleeding profusely. It is not made clear from where the blood was
coming from. He testified that the skin on the soles of his feet turned black tending to
suggest that the blood was from some other part of his body. The medical report does
not help the situation.
Time and again, this court and the Supreme Court have called upon magistrates
to call the doctor to give viva voce evidence where the affidavits tendered by the
prosecution are not clear or appear inconsistent with the oral evidence of the
complainant. (See Tawanda Todzvo v The State SC 103/97). In this matter, it was
imperative that the doctor be called to give oral evidence before a conviction on the
charge could be returned.
Due to the inadequacy of the medical evidence, the issue of the propriety of the
conviction was put to counsel for the appellants and the respondent at the hearing. As
already stated, they both expressed the view that the conviction was proper. Although
we were initially of the view that the conviction was not proper we now agree with the
view of both counsel that the conviction for assault with intent to cause grievous bodily
harm was proper.
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It is trite that the offence of assault with intent to cause grievous bodily harm is a
specific intent crime. While it is not necessary that the grievous harm should have
resulted from the assault, the actual injuries sustained, the nature of the weapon used,
the point of the body to which the attack was aimed and the degree of force used are
some of the factors that a court can properly take into account in inferring an intention
on the part of the accused. (See S v Mbelu 1966 (1) PH H176. The evidence in this
appeal shows that the complainant was beaten under the feet.
The appellants are members of the Zimbabwe Republic Police. They arrested the
complainant and assaulted him under his feet with a sjambok. The complainant’s
evidence about the assault reads as follows:-
“Yes accused two approached me and handcuffed me. I was taken to the Police
Post and I was handed over to accused one. Accused one said I was the stock
thief and he wanted me. I was ordered to remove my pair of shoes and (it was)
said I had stolen Mupepereki’s bovines. My hands were handcuffed so accused
one removed my shoes. I was taken into the yard. He started assaulting me with
a sjambok under my feet whilst he was stepping on my legs and accused two
was holding my head. He only stopped when I started bleeding profusely.
Accused two also assaulted me. I was assaulted on the soles of my feet and the
skin turned black. I also bled profusely. I was assaulted whilst outside
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people were watching. I later went to hospital and was examined by a Doctor.”
This evidence was not seriously challenged by the appellants. Under cross-
examination the complainant was asked about the apparent delay in being examined by
the Doctor. He had been assaulted on 28 March 2001 but the medical report was dated
24 April 2001. The complainant explained that the first report which had been prepared
by the doctor on 30 March was given to a police officer, a Constable Hove, but it
disappeared at the Police Station. He had to ask the doctor to re-examine him and
prepare another report.
The offence of assault with intent to do grievous bodily harm has been
considered in so far as its elements are concerned in the cases already mentioned
namely R v Edwards; S v Melrose, S v Tachiona & Anor and S v Dube.
In R v Edwards (supra) at 112E, BEADLE J said:
“I therefore come to the conclusion that as far as assault with intent to cause
grievous bodily harm is concerned, it is sufficient to prove that the accused
committed the crime knowing that his act was likely to cause grievous bodily
harm and that he committed it in circumstances which show that he was reckless
and careless as to whether or not such harm resulted. If that was his state of
mind, then I think the Crown has proved all the intent required to establish this
crime.”
In S v Melrose (supra) the court refrained from choosing between the tests for
holding what the nature of the harm should be – whether it be such as “seriously
interferes with health” or such as is “no more nor less than ‘really serious’.” The court
found that on the facts of the case before it the injuries were not very serious and the
appellant should have been convicted of common assault.
In S v Tachiona & Anor (supra) CHATIKOBO J said that to prove intent in a
charge of assault with intent to cause grievous bodily harm it was sufficient to show that
the accused did the act knowing that it was likely to cause grievous bodily harm and that
he did it in circumstances which showed that he was reckless and careless as to whether
or not harm resulted. Commenting on the passage from BEADLE J’s decision in R v
Edwards which we have quoted above, CHATIKOBO J, at 406F-407A said:
“The learned judge used the conjunctive “and” to make it clear that the element
of foreseeability should be coupled with recklessness. Foreseeability and
recklessness are two limbs of the same test. They are not two separate and
distinct tests of legal intention. Indeed, Hunt South African Criminal Law and
Procedure Vol I 1 ed (the second edition is not immediately available to me) at
p 119 defines legal intention as consisting of “foresight on the part of the
accused that the consequence may possibly occur coupled with recklessness as
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to whether it does or not”. Recklessness on its own cannot constitute legal
intention. A person can only be reckless about something which he foresees as a
possibility. Unless he can foresee something as likely to occur he cannot be
reckless about whether or not it occurs. Recklessness has been defined as
“persistence in such conduct, despite such foresight”: per HOLMES JA in S v de
Bruyn & Anor 1968 (4) SA 498A at 511G-H. It connotes a deliberate omission
to take heed when one is aware of the likelihood of something occurring.”
In S v Dube (supra) it was held that the crime of assault with intent to do
grievous bodily harm may be committed even though the physical injuries are slight
because the question as to whether grievous bodily harm is in fact inflicted on the
victim is immaterial in determining liability as it is simply the intention to do harm that
is in question.
From all the cases it seems to be the common thread that the intention for the
crime of assault with intent to do grievous bodily harm is established if it is shown that
the accused assaulted his victim with the knowledge that really serious harm may occur
(not will occur) and he is reckless as to whether or not it occurs.
The appellants in the present case assaulted the complainant in order to extract a
confession from him that he was the thief in the case of stock theft which they were
investigating. This brings the appellants’ act in the realm of torture. The United Nations
General Assembly has defined torture as:
“any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted by or at the instigation of a public official on a person for
such purposes as obtaining from him or a third person information or confession,
punishing for an act he has committed or intimidating him or other person. It
does not include pain or suffering arising only from, inherent in or incidental to
lawful sanction to the extent consistent with the Standard Minimum Rules for
treatment of Prisoners.”
Among the physical brutalities which have been found to amount to torture in
other jurisdictions are “falanga” or “bastinado” (beating of the feet with wooden or
metal stick or bar which makes no skin lesions and leaves no permanent and
recognizable marks, but cause intense pain and swelling of the feet) – see Paul Sieghart
The International Law of Human Rights at p 163 (paragraph 14.3.5). There is differing
judicial opinion on whether the motive with which the conduct is carried out has any
relevance to the question whether it constitutes torture. One school of thought is that the
existence of an objective such as obtaining information or a confession is a necessary
ingredient whilst the other school of thought is that torture is torture, whatever its
purpose, if inflicted compulsorily. We incline to the view that the existence of an
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objective such as obtaining a confession is a necessary ingredient of torture. Torture is a
degrading and inhuman treatment. In the present case two police officers subjected the
complainant to torture. They beat him under the feet with a sjambok in order to extract a
confession from him. Their intention, in our view, was to cause him such severe pain as
would result in him confessing to the offence alleged against him. In order to oblige an
adult to make a confession which is self-incriminatory one must desire that the assault
will serious interfere with the victim’s health to an extent that he will be forced to make
a confession. The torturer must so act with recklessness as to whether such interference
occurs or not. We have said that in other jurisdictions the beating of the feet with a
wooden or metal stick or bar which makes no lesions and leaves no permanent and
recognizable marks is regarded as torture. We think it is or should be so regarded in this
jurisdiction as well. In our view it is torture. The medical report prepared by Dr
Kabanda details the injuries sustained by the appellant as “haematomas under the feet.
Swollen upper arm and headache”. He found that the wounds observed were consistent
with the use of the sjambok – a “blunt instrument” and that the force applied to inflict
the injuries was “severe”. He also found that there was no possibility of permanent
disability occurring. This last observation is consistent with the nature of an assault
under the feet. It is designed to cause severe pain to induce a confession without leaving
any visible mark. The intention of the appellants, in our view, was properly established
as required by the definition of the offence charged. If their conduct was in fact torture
of the complainant, which we have determined it to be, there should no doubt that the
conviction was proper.
We initially questioned the complainant’s evidence that he bled profusely. His
evidence as to the assault generally and the report by the doctor regarding the “swelling
upper arm and headache” would suggest that he bled as a result of the assault. The
appellants did not dispute this assertion or the findings in the medical report.
The offence of which the appellants were convicted is a serious offence
involving the torture of a suspect. It is an offence that calls for a severe censure in terms
of punishment.
In their grounds of appeal against sentence, the appellants allege that the trial
court erred in –
“1) giving excessive weight to the seriousness of the offence per se and
failed to individualise the particular case before it.
2) Not taking into account the fact that the Medical Report discounted
likelihood of disfigurement and permanent disability.
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3) Not taking into account the fact that the complainant did not suffer
serious injury.
4) Not taking into account the fact that the assault was not directed at any
vulnerable part of complainant’s body.
5) Not taking into account the fact that no lethal weapon was used.
6) Not taking into account or giving insufficient weight t the fact that any
effective prison term would automatically terminate Appellants’ employ.
7) Giving insufficient weight to Appellants’ status as first offenders.
8) Giving insufficient weight to Appellant two’s age of 62 years.
9) Giving excessive devotion to the course of deterrence as to obscure the
numerous and weighty factors of mitigation.
10) In law in regarding imprisonment as the only punishment which is
appropriate for deterrent purposes.
11) Not appreciating that Appellants’ wrong lay in being overzealous in the
course of duty rather than wickedness per se. Their motive was therefore
noble and good.
12) Not treating imprisonment as a rigorous and severe form of punishment
which should only be imposed as a last resort.”
The respondent’s counsel found himself in some difficulty to support the
sentence imposed on the appellant. He conceded that the sentence is harsh and induces a
sense of shock. In the circumstances of this matter, we are of the view that his
concession was properly made. We accordingly set aside the sentence and proceed to
assess an appropriate sentence .
In assessing sentence in this matter, we have taken into account that the
appellants are first offenders and have family responsibilities. Further, as members of
the police force, they are likely to lose their jobs as a result of the conviction. Against
these mitigatory features are the aggravating features that the trial magistrate referred to
and what we have said regarding torture. The full wrath of the law should be brought to
bear upon police officers who assault suspects during investigations. There is need on
the part of the courts to protect suspects from police officers that use violence as a tool
of investigating crimes.
We have however considered that this is the first time that this Court has
classified the beating of a person under feet, as in this case, as torture. Those who
engage in the torture of suspects should ordinarily receive a substantial custodial
sentence. The Herald newspaper in its issue of 28 January 2003 contained the strongest
condemnation of torture in the following words:
“Torture is banned in Zimbabwe but there is, most unfortunately, a small
minority in the country who think they can get away with using torture as a
short-cut to the professional techniques used by the police.
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There are four strong objections to torture. First and most important, it breaches
a fundamental right guaranteed in our constitution and in international treaties to
which Zimbabwe is a signatory.
Secondly, it does not produce much practical information. Most people, faced
with torture, will admit to anything, whether they did it or not, and will try to
figure out what sort of lies that the torturer wants to hear and then tell them. The
information obtained if very dubious.
Thirdly, it degrades the torturer. The victim is not degraded. The victim is hurt
by the torturer but will receive the sympathy of all right-thinking people later
and will even become some sort of a hero. The torturer will be regarded as some
monster fit for the gutter.
Finally, even if any remotely valuable evidence is obtained, it will be thrown out
in any trial. Thus we might have the wrong person brought to court, because
they have admitted something they did not do, or the right person going free
because the evidence is tainted. Neither is desirable.
Thus there are legal, moral and practical objections to torture. It is wrong and it
does not work.
There is one argument in favour of torture that, at first sight, looks as though it
may be valid. It is an argument presented by the intelligence community in
several parts of the world including countries such as Israel and America. These
intelligence officers usually give the example that a terror gang is about to
detonate a bomb, overthrow a government or some other terrorist attack,
A member of the gang is found. Surely, they argue, it is better for this person to
be violently persuaded to give the vital information of where the bomb is to be
placed than for many innocents to die. Unfortunately, such an arrested person is
likely to lie. The information is likely to be worse than useless.
We would assume that those belonging to groups prepared to kill civilians
would be given plausible stories to tell should they be arrested.
The fake information would have the additional advantage of diverting
intelligence efforts down the wrong track and boosting the chances of a
successful terror attack.
Thus even this superficially valid argument fails the practical test.
The ban on torture does not mean that intelligence officers and the police have to
treat a suspect as though such a suspect was a guest in their homes. There is a
general acceptance that robust interrogation can be used.
But this robust interrogation consists of lengthy periods of questioning,
sometimes by teams of skilled officers operating in relays. Every inconsistency
in the answers is rigorously probed and pursued. A liar will be worn down.
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Eventually a skilled and experienced senior officer, and such a drastic
interrogation should always be led by this sort of person, will be able to make a
professional assessment over whether the suspect is involved. If not a handsome
apology should be made and the tired and hungry, but unharmed, suspect be
released.
Even in these cases the general principle is that there should be some real and
substantial evidence of involvement in a serious crime before any one can be
subjected to this procedure.
The cases of torture documented in the courts, both ours and others, show that
this abuse of legal and moral rights is committed by those who are unwilling to
follow the professional standards of their calling.
First class intelligence officers and first class police detectives do not resort to
torture. They obtain their information or their evidence with their brains, not
their hands. And that information is more reliable, and the evidence more solid,
than anything obtained under torture.
We hope the heads of our intelligence and police services make it abundantly
clear to all their officers that they will not tolerate torture in any circumstance.
This also applies to opposition leaders who have been arrested for kidnapping
and torturing members of other political parties. We don’t expect them to cry
foul when the tables are turned against them. Torture is wrong and useless.”
We wholly subscribe to these sentiments.
On the basis of the foregoing, the conviction is confirmed but the sentence is set
aside. The appellants are sentenced as follows:
"Each: a fine of $150 000-00 or in default of payment, 3 months imprisonment."
