S v MACHEMBO 2008 (1) ZLR 1 (H)

Flynote

Criminal law (common law crimes) — culpable homicide — constituent elements thereof — proof of negligent conduct and foreseeability of death arising from such conduct — concept of foreseeability discussed

Headnote

The accused was driving a lorry with eight passengers on a main road at night. On approaching a police roadblock, he defied an order to stop his vehicle. A policeman at the roadblock fired two warning shots to no effect. He then fired at the lorry killing one of the passengers thereon. The accused then stopped. He was subsequently charged with the crime of culpable homicide. At his trial before a magistrate, he pleaded guilty, was duly convicted and sentenced to pay a fine or in default of payment, to a term of imprisonment. Thereafter, being doubtful of the propriety of the conviction, the scrutinizing regional magistrate referred the case, on review, to the High Court.

Held, that a conviction for culpable homicide is founded on proof, firstly, of negligent conduct and, secondly, of foreseeability of death arising from that conduct. The concept of foreseeability is expressed at times as the natural and probable consequence, or as the direct result, of the act of commission or omission that the accused fails to guard against which results in death.

Held, further, that the accused took a deliberate and conscious act to disobey the police. His actions in failing to stop were grossly negligent. He was therefore negligent in that he created a dangerous situation by driving off from the road block instead of stopping as directed by the police. However, the State case fell on the aspect of the foreseeability of death arising from the accused's failure to obey the instruction to stop. Whether or not he was aware that the police who stopped him before the shooting were armed, a reasonable man would not expect an armed policeman to shoot at a moving lorry with passengers at the back in a bid to stop the driver. The death of the deceased was thus caused by the policeman and not by the accused's manner of driving. It was neither the direct result nor the natural and probable consequence of his failure to obey the police instruction to stop.

Held, therefore, that the conviction and sentence must be set aside.