S v MELROSE 1984 (2) ZLR 217 (S)

Flynote

Criminal law — assault with intent to do grievous bodily harm — "grievous bodily harm" — meaning of.

Evidence — medical — affidavits — necessity to call medical practitioner to amplify written reports.

Headnote

The appellant, a farmer, had discovered that one of his employees had failed to carry out one of his duties which was to "blow down" a boiler daily. Failure to carry out his duty could have resulted in the boiler exploding. The employee's false insistence that he had carried out this task resulted in the appellant losing his temper and striking the employee on the head with a pipe wrench that he had been using. He held the wrench by its head and hit the complainant with the handle. The medical evidence (which was given in report form) indicated that the complainant had received a laceration in the temporal region, caused by a single blow with a blunt instrument. No permanent injury was likely.

The appellant was convicted of assault with intent to do grievous bodily harm, and the question was whether the harm intended to be inflicted was "grievous".

Held, that there was some dispute in the decided cases on the precise meaning, one line of cases holding that the harm must be such as "seriously to interfere with health" and the other that "grievous bodily harm" means no more nor less than "really serious bodily harm".

Held, further, that in the present case it was not necessary to decide which formulation was correct. The facts from which the appellant's intention could be inferred showed that the injury actually sustained were no less serious than had been intended. Since the injuries were not very serious, it would be wrong to hold that the appellant had intended to inflict harm which "seriously interfered with health" or was "really serious". Accordingly, the appellant should have been convicted of common assault.

Held, further, that this was one of those cases where the medical report was lacking in detail and should have been amplified by viva voce evidence. Prosecutors should regard it as the rule rather than the exception that the doctor's verbal evidence is necessary and magistrates should remember that it is their right - indeed, their duty - in any case where they believe viva voce evidence would be of assistance to require the doctor to attend Court.