S v Chirinhe (289 of 2023) [2022] ZWHHC 2025 (22 September 2022)

1 HH 289-23 CRB NO. 44/22 THE STATE and TICHAONA CHIRINHE HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 2 June, 20 July & 22 September 2022 Assessors: Mr Jemwa Mr Gweme Criminal Trial F Zacharia, for the State S Mukwekwezeke & J Chikura, for the accused MUTEVEDZI J: Another victim of domestic violence or reckless mishandling of a firearm resulting in a fatality? Whichever way one looks at this homicide, what is certain is that the loss of life was needless. Tichaona Chirinhe (the accused), a serving police officer is accused of fatally shooting his spouse Juliana Chirinhe (the deceased) on the groin using his service pistol at number 164A Unit F Seke in Chitungwiza on 27 December 2020. The deceased was also a member of the police force. The injuries she sustained were mortal. The accused pleaded not guilty to the charge. He argued that he did not have any intention to kill his wife. His explanation was that on the fateful day he signed off from work and arrived home around 1000 hours. The deceased was sleeping in their bedroom because she had also returned from work where she had been on night duty. He further stated that he had carried his service pistol home. When he entered the bedroom, as was his routine, he removed a part of the weapon called the magazine from the gun. He attempted to clear it by squeezing the trigger but that unfortunately resulted in a shot being fired from the gun. It accidentally hit the deceased. He immediately sought help from their neighbour as well as notifying various other persons. He advised the court that there had been no altercation between him and the deceased prior to this incident. Their three children were all at home and in the house at the material time. Thereafter, he assisted the deceased to obtain lifesaving HH 289-23 CRB NO. 44/22 treatment but in vain. He blamed the hospitals for being negligent in the manner they attended to the injured woman. He prayed for his acquittal. Prosecution set out to prove its case by calling the oral testimony of a number of witnesses. The evidence and its analysis follows: Eunice Chiufamba (Eunice) She appeared to us as will be illustrated, to be an excitable and eccentric witness. She was a neighbour to the accused and his deceased wife. The events which led to her witnessing the alleged murder were purely fortuitous. She said she is Christian and worships under the denomination called the Roman Catholic Church. On Sunday 27 December 2020 she went to church in the morning. It was at the height of Covid-19 restrictions. The priest at the church barred people who were not on his list from attending service. The witness was one of those missing from the priest’s roll. She graciously left church and went back home in time to be involved in the drama which followed. In her own narration, on approaching home, and as good neighbours always do, she could not resist the temptation to check on the deceased and the accused. She called out the accused’s name. He responded and came out of the house. He invited her into the house to see the deceased who was sleeping but she turned down the invitation because she did not want to disturb the deceased’s rest. She proceeded to her place where she advised her daughter called Rumbi that she had been chucked out of church because of her stubborn behaviour. They both laughed off the incident. In the midst of changing from church uniform into her causal dressing, the witness said she heard a loud bang. At first she thought it was some electrical fault as those are common in the neighbourhood. It happened thirty to forty minutes after she had left her neighbours‘ place. The sound scared her. She lost concentration and forgot to dress up. In a state of semi-nudity she went out to check what had caused the sound. One of the witness’ children called Samkeliso advised her that someone was crying from the accused’s place saying that “she was dying!”. Eunice met the accused outside and immediately went back into the house. The accused was running and came directly into the Eunice’s bedroom. He held her by the hand and advised her that he had shot his wife by accident. They both rushed back to the accused’s house. Eunice said she was confused. She went into the bedroom where the deceased was. The accused was crying and running around the yard outside. The deceased was crying. The couple’s children were also crying. She said she then rushed to the deceased to attempt to stop the bleeding just like she had watched people do in the movies. One of the deceased’s HH 289-23 CRB NO. 44/22 fingers was bleeding. In all this Eunice was still half-naked. Justice like it occurred to Adam and Eve in the famous Biblical story, only then did Eunice think about her nakedness. She sprinted out of the deceased’s bedroom back to her own house. She finally dressed up properly and went out to look for a car to take the deceased to hospital. When she went back to the accused’s place, he was still holding the ‘smoking’ gun. Eunice then said she had both the intuition to know the attendant danger of the accused continuing to wield the weapon and the bravery to snatch it away from him to prevent further catastrophe. In her view, she was afraid the accused could easily shoot himself or the children. She put the gun in one of the couple’s back drawers after covering it with a shirt. Outside, the witness said she saw one Clemy, a local police officer who was returning from work. She called out to her and requested her to take the deceased to hospital whilst she remained behind to deal with the accused and the children. Commotion started building up at the house as neighbours and other members of the public gathered. The witness said she then asked some boys from the neighbourhood to contain the accused who was still hysterical although he indicated that he would surrender himself to the police. Eunice proceeded with her evidence and narrated that at the time they came to live as her neighbours, the accused and the deceased constantly fought and quarrelled. The fights revolved around the accused’s infidelity. The deceased would however not open up to her on what exactly the problem was no matter how much she tried. Three to five months before the murder Eunice said she had heard ululations from the couple’s house. The deceased later advised her that the cause for the celebrations was that she had been promoted to the rank of sergeant at her workplace. She congratulated her for the achievement. A few days later a braai party was arranged to celebrate the promotion. In her own assessment, the accused and the deceased appeared to have mended their differences and related well. At the time, she was returning from church, Eunice said she formed the view that the accused was drunk and was happy. She said she formulated that opinion on the basis of her own experiences with drinking beer. Her husband drank beer. Both her parents also drank beer. The accused was her neighbour whose drinking habits she knew well. She had seen him drink beer, get drunk and become sober. She therefore knew when he was drunk and when he was sober. On the day in question his speech was excited, his gait was unstable and his eyes also betrayed his drunkenness. She refuted the claim that the accused’s eyes were in that state because he had returned from night work and was tired. Although the accused was someone who did not HH 289-23 CRB NO. 44/22 want anyone to get too close to him, she knew him so well as to tell when he was happy or not. Quizzed on it, Eunice said she would not have known if there was anything that the deceased would have done to upset the accused. Under cross examination, Eunice further admitted that if there had been an altercation between the accused and the deceased on the day in question she was likely to have heard it because their houses were only separated by a perimeter wall. She admitted that she would not have known what was going on inside the house but from outside everything appeared normal. She was privy to the couple’s previous fights because often she was called to mediate. She further revealed that the only words the deceased had said to her were that “she was dead!” Asked to comment on the contention that the accused had not intentionally killed his wife, the witness said she could not do so because she wasn’t there when the shooting occurred. Only the accused would know. In yet another bout of eccentrics, when Eunice was asked if at the time she took the gun she had checked if its magazine was in place, her answer was that she was not capable of doing that. What she only did was to wipe her finger prints off the gun because she was afraid someone could attempt to turn the tables against her. Clemencia Yolanda Sibanda(Clemencia) As already indicated, this witness was called to the scene when the deceased had already been shot. Her evidence as would be expected, was of little significance if any. She was workmates with the deceased. They were not friends although they resided in the same street. She assisted in conveying the deceased to a facility called 24 Hours Medical Clinic, to CITMED Hospital and to Chitungwiza Hospital. When she entered the deceased’s bedroom Clemencia said she found her vomiting and that there was blood on her clothes. The visible wound was on her finger. When they got to the medical facilities, the deceased could not be promptly attended to because the private hospitals demanded that they be paid up front. That resulted in them shuttling from one facility to the other. When nothing could work, they proceeded to Parirenyatwa Hospital. The deceased was still alive. The doctor attended to her. Unfortunately, he later returned to advise that the deceased had sadly passed on. The witness further said in terms of police protocol officers are required to leave their service firearms at the armoury when knocking off duty. She added that guns can only be taken out when officers have special assignments. On such occasions all the necessary paper work showing the trail of authorisation must be completed. HH 289-23 CRB NO. 44/22 Under cross examination, the witness advised the court that in terms of contributing to the costs of the deceased’s treatment, the accused did little. When they asked him to pay for the admission costs at the private hospitals, he had indicated that he did not have any money. He later produced very little. As is clear the witness’ evidence remained colourless. Steven Gundumure (Steven) He is a ballistics expert attached to the Criminal Investigations Department Forensic Ballistics as a forensic firearms identification officer. He examined the firearm which was allegedly used to commit the offence. He compiled a report after the inspection. His testimony regarding the examination of the firearm were not contentious. That resulted in the CZ pistol used to fire the fatal shot, three 9 x 19 mm live rounds of ammunition and a single 9 x 19 mm spend cartridge being admitted and marked as exhibits 1, 2 and 3 respectively. The critical part of his testimony was his explanation about the safety features of the gun- exhibit 1. He said when he tested it, the safety mechanism of the firearm was perfectly functional. He then stated that an accidental discharge of a firearm comes in two forms. The first can result from a mechanical fault on the gun. With that the weapon would have malfunctioned during operation because of a faulty part in it. In this case, there was no such mechanical malfunction of exhibit 1. The second form of accidental discharge of a firearm can be a result of human error in the operation of the firearm. He then proceeded to detail the procedure which one must follow when cleaning a firearm. The first step so he went on, is that the person in possession of the gun must be aware of the safety procedures required when operating and generally dealing with a firearm. That is important for the person’s safety and the safety of all other people around him or her. These mandatory rules are that: a. A firearm must always be treated as loaded or ready to fire b. If one is going into a building, the firearm must be cleared outside the building c. When cleaning a firearm the process must never be done whilst the firearm is pointing at another person. It must be pointed at a safe direction to prevent accidental killings Thereafter the prosecutor applied for the production of the ballistic report in relation to the bullet head which was extracted from the deceased’s body during the post-mortem examination. The ballistics report was compiled by the same witness. Under cross- examination, the witness insisted that there had not been any weapon malfunction in this case. He also stated that he had visited the crime scene after the deceased had been shot. He HH 289-23 CRB NO. 44/22 ruled out that the bullet which had shot the deceased could have been a ricochet. He supported his conclusions on the basis of two observations. First there was no bullet mark on the walls or anywhere else in the room where the incident occurred. Second, the bullet head itself was not deformed to show that it had hit some other object before penetrating the deceased’s body. Bothwell Zindonda (Bothwell) He is a friend to the accused. His testimony was so brief that it left us wondering what he had been called to speak about. He met the accused at his barber’s around 0800 hours on the fateful day. Later the accused received a call from the deceased who said she was coming to pick him up. The accused then bought food stuffs for his children. He went home together with the deceased. They appeared happy. He was surprised when accused later called him to advise that he had accidentally shot his wife as he cleaned his gun. Under cross-examination he then revealed that he had spent only about thirty minutes with the accused at the shops. The accused was not drunk. After Bothwell’s testimony, the prosecutor applied to tender the post-mortem report detailing the cause of the deceased’s death. It was compiled by Doctor Javangwe. The defence did not object and the report was duly admitted. The deceased had died as a result of a penetrating gunshot wound on the pelvis and abdomen. In addition, the prosecutor also applied for the formal admission into evidence of the testimony of witness Simbarashe Maruziva in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Once again there was no protestation from the defence and the court admitted the witness’s evidence as it appeared on the state’s summary of evidence in terms of the cited provision. He is the officer who led the team which directed the indications process at the crime scene. Defence case The accused testified in his defence. He was the sole witness. In addition to what he had told the court in his defence outline, the accused said on the fateful morning he knocked off duty and called the deceased as was their routine. She advised him to wait for him at the shopping centre. He did. He had his hair cut whilst waiting for her arrival. When she arrived they bought groceries and happily left for home. He vowed that he was not drunk. On arrival, HH 289-23 CRB NO. 44/22 he removed the magazine from his gun. He did not notice that there was a bullet already lodged in the gun’s chamber. When he squeezed the trigger the bullet shot the deceased. She cried out. He advised her not to move as he rushed out to seek help. He then narrated the detail which is already on record pursuant to Clemencia’s testimony up to the point when the deceased was pronounced dead at Parirenyatwa hospital. At that point the accused said he was directed by his seniors at work to return to Chitungwiza. At the police station, he handed over the firearm, the ammunition and the cartridge. He was arrested and lodged into police cells. He said that it took about fifteen minutes for the deceased to be transported from their home to 24 Hours Clinic. The challenges started after the referrals to Citmed and Chitungwiza Hospitals. They shuttled back and forth before the deceased could be attended to. By the time they got help, it was too late. Under cross-examination by the prosecutor the accused admitted that he had taken his service pistol home and that the deceased had been shot by a bullet fired from that weapon. He also admitted that as a police officer he was trained on how to handle firearms. He said when he was cleaning the gun, he pointed it at the wall but did not realise that there was a bullet which had remained in the chamber. He squeezed the trigger and the weapon discharged. He insisted that the bullet had hit the wall and ricocheted on to the deceased. He also stated that the fact that he did not run away after the incident showed that he never had the intention to shoot his wife. He was aware of the gravity of the charge from the onset. His explanation for taking the gun home was that it was a Sunday and the armoury was closed. All he needed to do was keep the gun securely. With that the accused closed his defence case. Uncontested issues The following issues were non-contentious: a. The accused pulled the trigger of the gun which killed the deceased b. The deceased died as a result of the subsequent gunshot which penetrated her pelvis and abdomen c. No one except the accused witnesses the shooting HH 289-23 CRB NO. 44/22 Issues for determination The only issue for the consideration of the court is whether the accused had the intention to kill the deceased. Put in another way, the issue is whether the deceased’s shooting was accidental as alleged by the accused. The law on intention In terms of s 47 the Criminal Law Code, the crime of murder is committed where an accused illegally and with the requisite intention terminates the life of another. The prosecution therefore has a duty to establish that the accused person in one way or another intended to kill his victim. The generally accepted view is that intention in murder crimes exists in two broad categories. It may be actual or constructive. Actual intention Under this category, the accused’s sole objective is the termination of the life of his/her victim. He puts his mind to that purpose and accomplishes the objective of ending the victim’s life. It poses no challenges at all. See the case of S v Mungwanda 2002 (1) ZLR 574 (S) Constructive/legal intention/dollus indirectus This division is a source of controversy. It is different and difficult in that the accused’s purpose or objective is not as openly declared as happens with actual intention. My view is that it is in fact a misnomer to categorise this as a different type of intention. In reality it is only a method of finding whether intention existed. How it operates is that intention is extrapolated from the facts which are proven and the background of the commission of the offence. Put in another way, the accused sets out to do something in which it is apparent that death or substantial injury may result. Although it is not his aim, the accused subjectively foresees that result as virtually certain to occur because of his actions. He is reckless because he carries on with that conduct despite the awareness of the risk of death or serious injury being the outcome of his actions. Sections 13, 14 and 15 of the Criminal Law Code deal with the issues of actual and legal intention generally for all crimes which require proof of such in the following manner: HH 289-23 CRB NO. 44/22 13 Intention (1) Where intention is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue intended to engage in the conduct or produce the consequence he or she did. 14 Knowledge Where knowledge is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue had knowledge of the relevant fact or circumstance. 15 Realisation of real risk or possibility (1) Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components⎯ (a) a component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that⎯ (i) his or her conduct might give rise to the relevant consequence; or (ii) the relevant fact or circumstance existed when he or she engaged in the conduct; and (b) a component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a), the person whose conduct is in issue continued to engage in that conduct. (2) If a crime of which the realisation of a real risk or possibility is an element is so defined in this Code or any other enactment that⎯ (a) the words describing the component of awareness are omitted, the component of awareness shall be implicit in the word “recklessly” or any derivatives of that word; or (b) the words describing the component of recklessness are omitted, the component of recklessness shall be implicit in the expression “realise a real risk or possibility” or any derivatives of that expression. (3) Where, in a prosecution of a crime of which the realisation of a real risk or possibility is an element, the component of awareness is proved, the component of recklessness shall be inferred from the fact that⎯ (a) the relevant consequence actually ensued from the conduct of the accused; or (b) the relevant fact or circumstance actually existed when the accused engaged in the conduct; as the case may be. In the case of S v Yeukai Graham Mutero HH ……/23 this court held that the common law understanding of constructive intention was transposed to the Criminal law Code with a significant reconfiguration through the concept of ‘realisation of real risk or possibility.’ Under the common law, the test for legal intention was satisfied in instances where the accused undertook action in which he/she foresaw the possibility of the conduct resulting in certain consequences and with such foresight of the likelihood, he/she persisted with that conduct reckless as to whether the consequence materialised. In terms of the statute the concept of real risk or possibility has been added. It simply means that the risk or possibility which the accused must foresee must be more than a distant one. It must not be remote. The risk or possibility must be strong or likely. It must be virtually certain. Previously any kind of risk or possibility sufficed. The statute therefore ushered in a higher threshold of the risk or possibility. See the case of S v George Magambutsu & 2 Ors HB 297/17 for a comparative analysis. HH 289-23 CRB NO. 44/22 In the case of The State v Munodawafa SC 220/95 the Supreme Court illustrated the point that legal intention is deduced from the proven facts and circumstances which surround the commission of the offence. It stated that the nature of the weapon which an accused uses, the fashion in which the weapon is thrust and the part of the human anatomy at which the accoutrement is directed are all factors which a court must take into consideration when discussing the existence or otherwise of constructive intention. Apart from assessing circumstances such as whether the weapon was thrown from a distance or was impelled whilst being firmly gripped, the manner of thrusting the weapon must necessarily include an assessment of the force which is used. See also S v Lloyd Mukukuzi & Anor HH 577/17. In addition, the victim’s impuissance in instances where the accused was aware of it, is also a necessary consideration. See S v Mhute HH 784/15. Application of the law to the facts The difficulty in this case is that nobody witnessed the shooting. Only the accused and the deceased know exactly what transpired. The deceased needless to say, is no longer available to testify on what happened. The only living soul who was privy to the circumstances of the shooting is therefore the accused person. He says the death of his wife was an accident resulting from the unintended discharge of his firearm. In the case of S v Muchemi HH 561/2015 at p 2 of the cyclostyled judgment this court held that: “In other words, none of the witnesses was able to explain to the court the circumstances surrounding the actual stabbing of the deceased. Only the accused was privy to that situation. Because of this we can only reject his story if we are satisfied beyond doubt that the accused’s story is palpably false…” Similarly here, we can only discount the accused’s story if we make the determination that it is discernibly fabricated. The evidence which we have and which the accused barely controverted is that accidental discharge of a firearm results from two possible scenarios namely the malfunctioning of the weapon or its erroneous operation by a human being. The firearm in question did not malfunction. It did not have any mechanical fault. The only possibility which remains and which the firearms expert said must be explained by the accused is the aspect of human error. Inevitably, the accused latched on to it. He alleges a failure to check and clear the gun’s chamber of residue bullets. His further explanation is that he was pointing the gun away from the deceased. The bullet was discharged, hit the wall, boomeranged and ripped into the deceased’s pelvis and abdomen. The evidence of the HH 289-23 CRB NO. 44/22 projectiles specialist unfortunately shredded into smithereens the accused’s attempt to explain his actions. An inspection of the walls and the surroundings of the deceased’s bedroom where she was mortally wounded did not show any evidence to support the accused’s story. There was no bullet mark to suggest a ricochet. The bullet itself was recovered and was produced as an exhibit in this trial. The expert said it did not have any disfigurement to suggest that it hit a hard object before coming back to pierce and injure the deceased. We did not see any deformity on it either. It is on the strength of that irrefutable scientific evidence that the accused’s story that he was pointing the gun away from the deceased and that the bullet discharged from the weapon, ricocheted and hit the deceased cannot be accepted. It not only disregards logic but also defies scientific deductions. It is an aberration and is not only false but palpably so. We reject it. With the rejection of that part of the accused’s story what the court is left with are two possibilities. Either that the accused intentionally fired at the deceased and killed her or that in the process of cleaning his firearm as he alleges, the accused was pointing the gun in the direction of the deceased. When it discharged, the inevitable then happened. There is simply no evidence direct or circumstantial, which points to the accused having an actual desire to kill the deceased. No one saw him shoot the deceased. There are no circumstances pointing to any acrimony between the accused and the deceased. If anything, the testimony available to us is that although the union was at one time turbulent, the two appeared to have lately been living in bliss. We therefore have no choice but to follow the accused’s own version that the gun discharged whilst he was in the process of cleaning it. To gauge if the accused had constructive intention to kill the deceased, his actions have to be measured from that perspective. We have already said the test is that the accused must be aware that the potential harm resulting from his actions is virtually certain. He is however reckless as to whether the consequence ensues or not. In this case, the accused undertook a series of dangerous actions. First, he went into a dwelling house where his wife and three children were with a loaded gun. We were advised by the gun expert that it is not only impermissible but highly dangerous to do so. The accused therefore foresaw the danger that the gun could accidentally discharge and kill or seriously injure one of the occupants of his house. His actions however fall short of intention in that regard because it was not virtually certain that the discharge would occur. Second, the accused dismantled his weapon without taking the necessary precautions. He did not ensure that his gun was pointed in a safe HH 289-23 CRB NO. 44/22 direction. The court discounted and rejected his attempt to say it was. Our finding is that it must at the very least, have been pointing in the general direction of the deceased. Once again the accused must have subjectively foreseen the risk that something could go wrong resulting in the deceased or someone else’s death or serious injury. What saves him is that he alleges that he had removed the magazine from the pistol. The magazine is the part of the gun which stores ammunition from which it is then fed into the firing system. In his mind the gun was no longer loaded. He therefore must have believed that the danger was minimised. Once that happened it cannot be said that the he realised that the risk was virtually certain. Third, the accused did not check the gun’s chamber to ensure that no bullets remained therein. He then squeezed the trigger and shot the deceased. We have already said in his mind he thought the gun was not loaded. Although he should have as reasonable police officer foreseen the possibility that a bullet could have been lodged in the gun’s chamber, he did not subjectively foresee it in this case because he genuinely believed he had cleared the weapon. Because of the requirement that the risk or possibility must not only exist but must be strong or highly likely, the accused’s actions did not reach the threshold required for it to be intention. The accidental discharge remained within the realm where the accused was expected to have reasonably foreseen the attendant risks to his actions. That amounts to negligence which is a lower level of mens rea. It is grounded on a failure to exercise reasonable care by the accused. It envisages a lack of foresight and the presence of carelessness, which result in death or injury to another person as happened in this case. It is against the above background that we are left with no choice but to find as we hereby do that the accused person lacked intention, actual or legal, to murder the deceased. He was however grossly negligent in his actions. For the above reasons we are not convinced that the state managed to prove beyond reasonable doubt that the accused is guilty of murder as charged. We accordingly find the accused not guilty and acquit him of the charge of murder but find him guilty of the competent verdict of culpable homicide as defined in s 49 of the Criminal Law Code. National Prosecting Authority, State counsel’s legal practitioners Chimwamurombe Legal Practice, Accused’s legal practitioners HH 289-23 CRB NO. 44/22