S V CHIPERE 1992 (2) ZLR 276 (S)

S v CHIPERE 1992 (2) ZLR 276 (S)

Flynote

Criminal law — assault with intent to do grievous bodily harm — use of excessive force by policeman when arrest unlawful

Criminal procedure — arrest — by policeman in plain clothes — policeman asked to produce some identification to establish that he was a policeman — whether obliged to do so — policeman must not use excessive force when effecting an arrest

Criminal procedure (sentence) — assault with intent to do grievous bodily harm — policeman using excessive force when arresting person — seriousness of assaults committed by members of law enforcement agencies when executing their duties

Headnote

A policeman who was in plain clothes saw a group of persons drinking in a public place. He approached them, holding a spear, and informed them that he was a policeman and that they were breaking the law by drinking in a public place, and that they were under arrest.

The persons who were drinking did not dispute the appellant's claim to be a policeman, except that the complainant asked to see some identification to verify that he was a policeman saying that, for all he knew, he could be a criminal since he was holding a spear.

The appellant apparently took this remark to be an affront to his authority and, without producing any identification, he grabbed the complainant. The complainant shrugged off his hold and started to walk away. The appellant felled him and stabbed him with his spear in the forehead. The complainant then fought back but the appellant got the upper hand. The complainant was stabbed in the hand as he attempted to ward off a blow with the spear aimed at his chest.

The appellant was convicted of assault with intent to do grievous bodily harm and sentenced to an effective term of imprisonment of five months. He appealed against both conviction and sentence.

Held, that although drinking in a public place is not an offence specified in the First Schedule of the Criminal Procedure and Evidence Act [Chapter 59], in terms of s 29(1) a policeman has the power to arrest without warrant any person who commits any offence in his presence.

Held, further, that the complainant was amply justified in asking to see identification as the policeman was not in uniform and was carrying a spear, a weapon more associated with criminals than policemen, and the appellant should not have refused to produce identification to establish that he was a policeman. Also sometimes criminals pretended to be policemen who were effecting an arrest.

Held, further, that the appellant was only entitled to use the degree of force which was necessary to effect the arrest and the appellant had used completely excessive force. The use of more force than necessary was thus unlawful.

Held, that although relatively minor injuries had been inflicted on the complainant that the appellant had had actual or legal intention to inflict grievous bodily harm and he had been correctly convicted of the crime charged.

Held, further, that the sentence imposed was appropriate as unlawful assaults by policemen committed while executing their duties were grave offences.