MATHONSI J: The accused is charged with the crime of
murder in contravention of section 47
(1)(b) of the Criminal Law (Codification and Reform)Act,
Chapter 9:23
That section provides as follows:
“Any person who causes the death of
another person realizing that there is a real risk or possibility that his or
her conduct may cause death, and continues to engage in that conduct despite
the risk or possibility shall be guilty of murder”
Murder consists in the unlawful and intentional killing of
another person. The crime of murder can
only have been committed where X intends to kill his viction. The action of X must be both the Factual
and Legal cause of the consequence.
X is
the factual cause of the death if, but for his actions, the deceased would not
have died when he did. The test for
legal cause is whether it was objectively foreseeable or within the range of
ordinary human experience that the accused's action would lead to the death of
the deceased.
For
this discussion, see G.Feltoe, A Guide to
the Criminal Law of Zimbabwe pages 101 to 103 and 106.
See also P.M.A Hunt,
South African Criminal Law and Procedure, Volume 2 pages 340 -341.
According to Hunt (supra) at page 341:
“Intent to kill is tested
subjectively: whether the charge is one of murder or attempted murder, the
state must prove either actual or legal intention: culpa is
insufficient. Actual intention exists
where X commits the actus reus meaning
to kill Y: where the will is directed to compassing the death of the
deceased. Legal intention exists where X
commits the actus reus foreseeing that it may cause Y's death.”
There are however situations where
the accused's blow is deflected and this arises where the accused intending to
kill Y aims a blow at him but misses or the blow is deflected only to strike
and kill D. Discussing that situation at
page 106 Feltoe (supra)says:
“If X intends to kill Y and kills D
instead, only liable for murder if he actually intended his death as well or if
he subjectively foresaw the possibility of his death and proceeded recklessly. If there was no actual or legal
intention to kill D but death of D is objectively foreseeable then X is guilty
of culpable homicide. If D's death
was neither subjectively foreseen by X nor objectively foreseeable, X is not
liable for any crime in respect of the death of D.”
It is this common law which has now
been codified in the Criminal Law (Codification and Reform) Act, chapter
9:23. See chapter 5 Part 1 of that Act.
In
terms of section 275 as read with the 4th Schedule of the Code, where
a person is charged with the Crime of Murder, it is a permissible verdict for
that person to be convicted of culpable homicide if such facts are proved.
Having
set out the law on the subject it is proposed to now examine the evidence that
was led by the state in an effort to prove its case against the accused person.
We will
start with those facts that appear to be common cause. It is common cause that on the eve of the new
year of 2007, a large crowd of people had gathered at a location between Fort
street and Herbert Chitepo street along Leopold Takawira Avenue. The area is bound by Tredgold Building and
Chicken Inn on the side of Fort Street and by Tredgold Building (which in fact
stretches between Fort Street and Hebert Chitepo Street) and what was then
Edgars Store and is now Afro Foods on the side of Hebert Chitepo Street.
It is
conmon cause that there were a lot of vehicles that were skidding and screeching
tyres at the intersection of Fort street and L.Takawira Avenue at the dawn of
the new year as their way of celebrating the new year. At the same time other people were firing
crackers and other fireworks making the traditional new year celebration
noises.
It must
also be taken as common cause that such behavior was illegal and under normal
circumstances the police would be expected to act against the perpetrators.
At that
time, the accused person arrived at the scene driving a police coloured mazda
B1800 motor vehicle and witnessed what the merry makers were doing. At about the same time, a police defender
open truck carrying riot police (referred to as PRG) arrived at the scene as
well.
It is common caused that a red
ISUZU truck also skidded and screeched its tyres at the same intersection just
as the police defender carrying riot police arrived. After a while, the accused person chased
after that ISUZU vehicle for one reason or the other. As he did so, he fired 3 shots from his
service 9mm Smith and Wesson pistol serial number A60609ZRP 130.
It is
common cause that at about the same time, the deceased Artwell Magagada had just knocked off from work at
Chicken Inn where he was employed. He
and his other workmates were making their way on foot from Chicken Inn due
south intending to catch their staff bus at TM Hyper.
It is
common cause that as they were walking at the pavement of Tredgold Building on
the Fort Street side just next to the Small claims Court the deceased Artwell
Magagada was struck by an object on the head which penetrated his skull causing
a skull fracture and it lodged in his brain.
It is
also common cause that the deceased fell to the ground after being struck, was rushed
to Materdei Hospital where he was attended to and that he died on the 5th
January 2007. When a post mortem was
conducted on his body on the 9th January 2007, the object lodged in
the deceased's head was retrieved and it has been produced in court as exhibit
9.
It is
common cause that the accused's service pistol was recovered from him on the same
day of the shooting, was conveyed to Ballictics in Harare together with the
fragment extracted from the deceased's head for examination. A ballistic report was compiled.
The
state led evidence from Sibangilizwe Gwabalanda Mathe an employee of Innscor
Company which runs Chicken Inn who was a work mate of the deceased who
testified that at the material time he had seen a red combi vehicle skidding at
the intersection of Fort Street and L. Takawira Avenue and had also seen what
he called “a small police truck” parked along L.Takawira Street facing Chicken
Inn. Mathe said he and his colleagues
were walking to board their staff bus at TM Hyper and he had just stepped up
the pavement of Tredgold building along Fort Street when he heard 2 or 3
gunshots from behind him.
The
noise of gun fire caused him to turn looking back to see what was happening and
although he did not see where the shots were fired from he beheld the small
police truck which had previously been parked along L.Takawira facing east
making a U-Turn which was a right turn up L. Takawira avenue towards H. Chitepo
Street. According to Mathe, when he
heard the shots the police vehicle was passing the centre parking electric pole
executing a U-turn and it was about 4 to 5 metres away from the right lane of
L. Takawira Avenue but just close to Fort Street. He strongly disagreed with the suggestion
that the shots were fired when the police vehicle was close to H. Chitepo
Street which would have been a considerable distance from where he was.
Mathe
testified that 2 shots were fired in quick succession after which the deceased
who was about 5 paces ahead of him fell to the ground. A third shot sounded later.
The
state also led evidence from Noget Hwara, a lady who is also employed by
Innscor, was a workmate of the deceased and was walking side by side the
deceased on their way to catch a staff bus home at TM Hyper when she heard a
sound. She then heard a second sound
after which the deceased fell down.
According to this witness the deceased fell just next to the Tredgold
Building door where civil marriages take place.
The sound she had heard was different from that of fire crackers as it
was louder. Although she was unable to
tell where it came from, when she looked back to where they had came from she
observed a white police truck facing their direction.
This
witness was adamant that the deceased fell after the second sound. If the evidence of these 2 state witnesses is
to be accepted then the deceased must have been hit at a time when the accused
had just commenced chasing the red vehicle he was chasing and he was in the
process of negotiating a U-turn up L. Takawira Avenue.
If no other gun except that of the accused was fired at that
particular time and if the shot which struck the deceased came from the accused's weapon and if the accused's
explanation that he fired 2 warning shots is accepted, then it must follow that
the deceased was struck by one of the warning shots and not the direct hit
aimed at the wheel of the ISUZU that was fleeing.
We shall
return to determine that controversy later.
The
evidence of the other employees of Innscor who were present on the fateful day,
that is Rex Pairamanzi and Sikhuphukile Ndimande was admitted by consent in
terms of section 314 of the Criminal
Procedure and Evidence Act, Chapter 9: 07.
Also taken in terms of that section was the evidence of Sergeant Mishack
Sithole,Constable JerichoGandiwa (both members of the PRG which was called to
attend the scene). Sara Imbayago Samuel,
the nurse at Materdei Hospital who
admitted the deceased into the Intensive Care Unit, Doctor Oliver Chrispin
Ntoto- Mambote who treated the deceased and certified him dead on the 5th
January 2007, Seargent Isiah Chikanda
who conveyed the accused's weapon (exhibit 7) and the bullet fragment (exhibit9)
to Ballistics in Harare and D/Contable Saul Mutepaire who took photographs of
the post mortem examination and the indications made at the scene.
The
other admitted evidence was that of Detective Sergeant Nkathazo Nyoni who
witnessed the post mortem examination and recorded the accused's indications,
D/Sgt Tsoarelo Moyo who drew up a sketch plan from indications made and Doctor
R.K.H Chigangacha, the government pathologist who performed the post mortem and
compiled exhibit 4.
The foregoing evidence was tested
by intensive cross examination and remained intact as there was nothing to suggest
that any of the cited witnesses had falsified their evidence or that they had
any motive to do so. To us these
witnesses, especially the Innscor employees, gave their evidence extremely well
and completely innocently.
The
ballistic report, exhibit 6, was produced by consent. It had been compiled by Inspector F. Cole
then of ZRP C.I.D Forensic Ballisties in Harare. Inspector F. Cole had examined the weapon (exhibit
7) and the bullet fragment (exhibit 9) and drew the following
conclusion:
“Examination of weapon (a) (exhibit
7 ) showed that it was functional.
Examination of the barrel and chamber of weapon (a) were found to
contain fire arms residue, indicating that weapon (a) had been fired. Examination of exhibit (b) showed that it is
a bullet fragment. I am unable to make a
comparison with exhibit (b) due to no characteristics. Weapon (a) was
manufactured after the year 1900”.
Clearly therefore the ballistic
report was inconclusive. While the
finding of Inspector F. Cole was that the item recovered from the deceased's
skull was of bullet fragment, he failed to link that bullet fragment to exhibit
7, the accused's weapon. The reason
for that was that it lacked characteristics for comparison to be made.
We
assume it was because of these difficulties that the state found it necessary
to call Inspector Admire Mutizwa also of CID Ballistics in Harare. He is the holder of a Bachelor of Science
(Honours) degree in physics obtained from the University of Zimbabwe. He also undertook a 2 year police training
course specializing in the identification of firearms cartridges and anything
to do with explosives.
While
Inspector Mutizwa is not the author of the ballistic report, exhibit 6,
the defence did not challenge the decision to call him to come and interpret
the report. Be that as it may, he told
the court that he was part of the team that conducted the forensic examination
of exhibits 7 and 9.
According
to this witness the tests carried out which included dissecting a 9mm bullet
head(exhibit 8 ) led them to the conclusion that the bullet fragment
extracted from the deceased's head (exhibit 9) was in fact a fragment of
a 9mm bullet head. He conceded however
that this only means that the fragment may have emanated from a bullet fired
from any 9mm weapon. Therefore this only
means accused falls within the group of those who were in possession of a 9mm
weapon on that fateful day who may have fired in at the time resulting in a
fragment finding its way to the deceased's head.
The
ballistic evidence was strong challenged by the defence which brought its own
ballistic expert Retired Chief Inspector Makanda who testified that the
fragment (exhibit 9) contained enough copper with lead in it to such an
extent that the ballistic experts should have managed to positively link it
with exhibit 7 (the weapon) if at all it had been fired from that weapon. He took the view that because the copper
jacket of a bullet leaves traceable marks in the barrel these would enable a
ballistic expert using a microscope to establish if it had or had not been
fired from a particular gun.
It was
Makanda's evidence that he could not tell whether exhibit 9 was a bullet
fragment or not but generally bullets are made in such a way that they do not disintegrate
or fragment on impact. His view was that
depending on the surface that it collides with a bullet that has been fired
would ordinarily fall down harmless or be found squashed on that surface
especially if the surface is flat.
Asked
if a bullet would not fragment in hitting a hard surface Makanda maintained
that bullets are not made to fragment but would perhaps do so if that bullet is
faulty. His view was that while a bullet
can ricochet, it does so as a complete whole and not as fragments.
Makanda's
biggest problem is that he did not examine the exhibits, he did not have a
microscope, an equipment he last used while he was based at ballistics in
Harare and for all that it is worth his evidence was generalized. While he is clearly an expert in that field
having been trained in armoury by the army for 3 years before joining ZRP where
he spent 26 successful years, he was incapacitated by his inability to expertly
examine the exhibits using proper examination tools. In the end his evidence was reduced to
concessions that using the naked eye he could not deny that exhibit 9
was a bullet fragment and he could not contradict Mutizwa's conclusion that it
was a bullet fragment.
What we
are then left with is the uncontroverted findings of the ballistic expert that
exhibit 9 which killed the deceased was a bullet fragment which had been fired
from a 9mm weapon which brings us to the inquiry of the source of that bullet
fragment.
The
evidence that is available is to the effect that the accused fired 3 shots
about the time that the deceased was struck what proved to be the fatal
blow. By his own admission, even without
reference to the warned and cautioned statement he sought to distance himself
from albeit unsuccessfully, he first fired 2 warning shots and a 60 degree
angle as he pursued the fleeing ISUZU vehicle.
If this is juxtaposed against the evidence of the state witnesses, which
we have already accepted, to the effect that when the first 2 shots were fired
the accused's mazda B1800 motor vehicle was just negotiating a U-turn next fort
street from the left lane of L.Twkawira street to the right side to drive west
towards H. Chitepo street, and that the deceased fell after the second shot,
the inescapable conclusion is that the deceased was struck by the accused's
warning shot.
There
in lies the accused's decision to shift the shooting including the warning
shots to as far away from Fort Street as possible. He may have realized that in the haste to
fire warning shots at 60 degree angle he completely overlooked the fact that
there was a tall building namely Tredgold Building. It is more than likely therefore that one of
the warning shots deflected from that stone building (a hard surface indeed)
and its fragment struck the deceased on the head thereby causing his subsequent
death.
Having
realized the predicament he was in, the accused then came up with the defence
that other shots were being fired during the celebration that was taking place
and that any of them could have struck the deceased. Unfortunately, other than his say so, and the
horribly unbelievable evidence of Taurai Chideme, there is no evidence that
other shots were fired contemporaneously with the fall of the deceased. This is also supported by the fact that not
only did all police officers available at that place do nothing about such
shots, but also that no other witnesses heard the shots.
We
therefore find as a fact that the only shots that were fired from a 9mm gun
were the 3 fired by the accused. Again
the inescapable conclusion especially considering the proximity of the deceased
is that the 2 warning shots were fired next to Fort street and one of them
deflected hitting the deceased. The
contention surrounding the warned and cautioned statement then pales into
insignificance.
Having
said that, we need to mention that, the accused explained that the reason he
chased after the red ISUZU and fired shots was not so much because the vehicle
had been skidding at the intersection but because he had observed that
the driver was armed. The state has
sought to rubbish that explanation on the basis that if indeed the Isuzu driver
was armed and had cocked his gun, the accused would not have allowed him to
squeeze past his vehicle before giving chase and that a police officer of the
accused's standing would not have behaved that way.
It is
contended that no-one else witnessed the incident or saw the gun in the possession
of the Isuzu driver. The state
however has not advanced any evidence from the “multitude” of people who were
present to disprove that story.
In our
view the explanation given by the accused is plausible. To the extent that he had observed an armed
suspect making good his escape, the accused was entitled to use his service
pistol to effect an arrest.
To the
extent that we have already made a finding that the deceased was struck by a
deflected warning shot, can it be said that the accused had an intention be it
actual or constructive, to kill the deceased?
Can it be said that the accused had an intention to kill the driver of
the Isuzu driver?
For the
court to find the existence of constructive intent as urged by the state, there
must be more than negligence on the part of the deceased see S v Gumbi 1994 (2) ZLR 323 (S) at 327 E-H where
Ebrahim JA said:
“The point, in essence is that
there must be more that negligence and more that gross negligence to constitute
that form of recklessness which amounts to constructive intent or dolus eventualis----- There must
be, in the mind of the accused person what has been called 'a volitional
component' ---- In other words he must, in effect, say to himself, 'I know I may
kill this person if I shoot. But I am
going to shoot anywhere”.
See also R v Kadongoro 1980 ZLR 54
(G). In S v Richards 2001 (1) ZLR
129 (S) at 130 F-H and 131 A-B the supreme Court said, per Ebrahim JA:
“ Culpable homicide consists in the
unlawful negligent killing of a human being--- In Milton's South African Criminal Law and Procedure Volume 2, 3rd edition
at page 365, the learned author states:
'(4) The role of negligence in
culpable homicide is thus to determine whether the killing was an accident (and
thus not punishable) or an unlawful (albeit, unintended) killing which is
deserving of punishment. The test of
negligence is formulated in such a way as to investigate whether in the
circumstances the conduct of the actor in bringing about the death of the
deceased complied with established norms terms of care in undertaking an activity
which carries a risk of harm to other persons.
In other words, the law 'turns the criminality of (negligent) actions
entirely on a calculus of utilities: how great the probability that life will
be lost, how socially important the purposes served by the action, and how
feasible the use of less risky measures to achieve the same--- (Unlike intended
killings) these utilitarian assessments are the standard factors in judging
unintentional killings. ---
(5) The test of negligence is
formulated in terms of the notion of the 'reasonable man', a figure who is' the
embodiment of all the qualities which we demand of the good citizen, a device
whereby to measure the (criminal's) conduct by reference to community
valuations”
Applying the law as already set out above to the facts of
this case, the answer to both questions of whether the accused intended to kill
the deceased and the driver of the Isuzu, should be NO. We come to the conclusion that the elements of
murder have not been proved in this case.
We have
already alluded to section 275 of the Criminal Law (Codification and Reform)
Act, chapter 9:23 which provides that if a person is charged with murder it is
a permissible verdict to convict of culpable homicide. It is therefore imperative to address the
issue of whether the proved facts establish the crime of culpable
homicide. In that regard we are indebted
to the state for its well researched closing submissions in which reference is
made to a number of useful authorities.
It seems to us that considered with
the principles set out in S v Richards (supra), the accused cannot escape liability. He was also armed with a dangerous lethal
weapon. He chose to fire it in a crowded
area. The area in question had tall
buildings but instead of firing perpendicularly into the air he fired at a 60
degree angle resulting in a ricochet that killed the deceased.
Accordingly, the accused is found
not guilty and acquitted of the charge of murder but is found guilty of
culpable homicide.
Criminal Division, Attorney General's Office states legal
practitioners
Dube-Banda,Nzarayapenga
& Partners accused's legal practitioners
