S v TAPERA & ORS 2012 (2) ZLR 246 (H)

Flynote

Criminal law — offences under Criminal Law Code — culpable homicide — death caused by negligence — foreseeability — objective test — what must be foreseen — need to foresee risk of death, not merely risk of injury — need for a nexus between actions of accused and death of deceased

Headnote

The appellants, who were all police officers, were convicted of culpable homicide. They had, at night and on an unlit road, intercepted a bus. Acting in concert, they forced the driver to reverse the bus for a considerable distance in order to go back to the nearby police station. They were acting on the belief that inside the bus was a suspect whom the complainant in a case of assault would identify at the station. The third appellant was driving a vehicle parallel to the reversing bus with his headlights on full beam facing the direction towards which the bus was reversing. A flashing blue light on top of his vehicle was operating. A motor vehicle travelling in the same lane as the reversing bus came upon the scene and rammed into the back of the bus, killing the driver and two other passengers. There were no particulars of negligence set out in the charge sheet but the basis of the charge, as set out in the State outline, was that the appellants created a dangerous situation which they failed to warn approaching motorists about, resulting in the motor vehicle driven by the deceased crashing into the back of the bus.

Held, that the test for negligence in culpable homicide is objective. What ought to have been foreseen, whether what was foreseeable ought to have been guarded against, and the measures which ought to have been taken are adjudged by the standards of what the reasonable man would have done in the circumstances. Foreseeability is an essential element to be considered in deciding whether a causal connection exists between the a unlawful act or omission and the death of the victim. Foreseeability of risk of bodily injury, as opposed to risk of death, is not sufficient. The test of foreseeability in culpable homicide is, however, an objective one and it is sufficient for legal responsibility to arise that the accused ought to have foreseen some risk of death.

Held, further, that to convict an accused person of culpable homicide, the court must find as fact the existence of a causal link between that person's act or omission and the death of the deceased before liability can attach. Death must have been reasonably foreseeable as a consequence of the accused's conduct: for example; the manner of assault, or of driving in which the accused was engaged vis-—-vis the deceased. The argumentthat the accused is liable because he was engaged in an unlawful act which somehow resulted in the death of the deceased implicitly imports the rejected doctrine of versari in re illicita.

Held, further, that the appellants may have overstepped the call of duty regarding the execution of effecting an arrest. Their pursuit of the suspect was, however, largely in the line of duty. They could hardly have foreseen that, in requiring the driver to promptly get to the police station by reversing the bus, someone else outside the bus could die when there was appropriate signalling by the blue beacon atop the third appellant's vehicle. On the evidence, there was no nexus between the actions of the appellants and the death of the three deceased. Rather, the evidence pointed to the failure by the deceased driver to keep a proper look out as being the proximate cause of the fatal crash.