REGINA v KADONGORO 1980 ZLR 54 (G) REGINA v KADONGORO 1980 ZLR 54 (G)

Author: Trodat Zimbabwe

REGINA v KADONGORO 1980 ZLR 54 (G) REGINA v KADONGORO 1980 ZLR 54 (G)

1980 ZLR p54

Flynote

Criminal law — attempted culpable homicide — whether offence recognized in our law.

Headnote

The accused had negligently shot the complainant with a rifle. The complainant did not die. _F

Held that in the circumstances it would not be appropriate to convict the accused of attempted culpable homicide, but rather of negligently pointing a firearm in contravention of section 40 of the Firearms Act [Chapter 308].

Books cited

G Burchell & Hunt, South African Criminal Law and Procedure, volume I, page 378? Hunt, South African Criminal Law and Procedure, volume II, pages 388­9.

Judgment

Beadle AJ: The accused was charged with the crime of attempted _H murder, it being alleged that he shot the complainant with a rifle. The complainant did not die. In finding the accused guilty of attempted murder, the magistrate said he was “unable to find with any confidence that you fired the shot deliberately”, and he then went on to say: “In my

1980 ZLR p55

Beadle AJ

view, therefore, whilst you had no actual intent it must be said that by virtue of your gross negligence you had a constructive or legal intent.” _A He thereupon found the accused guilty on the doctrine of doluseventualis.

It seemed to me that the magistrate was clearly wrong in confusing doluseventualis with gross negligence, and that the conviction in its present form cannot stand. _B

The problem, therefore, is: what is an appropriate substitute verdict? Had the complainant died, in view of the magistrate’s finding that the accused was guilty of gross negligence, he would undoubtedly have been found guilty of culpable homicide, but the complainant did not die.In _C these circumstances, is it permissible to find him guilty of the crime of attempted culpable homicide? Put differently, is there such a crime as attempted culpable homicide when applicable to circumstances such as these? _D

I referred the matter to the Attorney­General for his views, and these are his views:

“The main difficulty in the way of the existence of attempted culpable homicide lies in the requirement that for attempt it is necessary that the accused person should intend to commit the offence in question and that E such intention must consist of actual or constructive intent (see Burchell& Hunt, South African Criminal Law arid Procedure, volume I, at page 378).Such exceptions as exist only go to prove this rule. The first such category of exception would occur where an accused person attempted to kill another but in circumstances of partial excuse so that had he in fact succeeded he would only have been convicted of culpable homicide and not murder (for F example, where there are grounds for the use of self­defence but a moderate excess of force is employed). The second category is where the crime by definition requires mens rea in the form of negligence to be constituted? if the accused person intends to commit that crime but fails he may be convicted of such an attempt. Such an example might be where a person, knowing that his vehicle has defective brakes, attempts to start it in order to G drive it but fails to do so. (See also, Hunt, South African Criminal Law and Procedure, volume II, at pages 388­389.)

Another primary difficulty in the way of a conviction of attempted culpable homicide lies in the unique nature of this offence. By definition it is only committed when the victim is killed. On the other hand, the offence of assault H requires mens rea in the form of intention, either actual or constructive.

Assault, therefore, by and large would be categorized as a crime consisting of circumstances, whereas culpable homicide is a crime of consequences. If not unique, it is certainly unusual for a common­law offence to be committed only by negligence and this is obviously the case with culpable homicide

1980 ZLR p56

BEADLE A J

because of the seriousness with which the law regards the loss of life. It may, nevertheless, be considered somewhat anomalous that a man may be permanently crippled by the negligent conduct of another, yet if he does not die the criminal law takes no cognizance of his actions.

However, A to meet this situation by recognizing the offence of attempted culpable homicide is fraught with uncertainties since there would be no practical limit to this offence. Persons are convicted daily of negligent driving in circumstances where others might easily have been killed but were saved by luck. Are they to be convicted of attempted culpable homicide? A similar situation exists in numerous cases of assault. B It is submitted that these considerations illustrate what is in fact common knowledge, that our law does not in general recognise the offence of attempted culpable homicide save, perhaps, in the exceptional cases mentioned. Further evidence of this lies in the Criminal Procedure and Evidence Act [Chapter 59], where there is no mention of attempted culpable homicide in the C section relating to competent verdicts, in particular section 200. The verdict of attempted culpable homicide on a charge of attempted murder is in fact not a competent one (see also sections 195 (1) and 339). On the facts of the present case it is respectfully submitted that the accused is only liable to conviction, in terms of section 200 (c) of the Criminal Code, of pointing a firearm at the complainant in contravention of section 40 of the Firearms Act D [Chapter 308], for which the maximum penalty provided is a fine of $100 or imprisonment for six months. The record is returned.”

I agree substantially with the reasoning of the Attorney­General. I do not think in these circumstances it would be appropriate to convict the accused of attempted culpable homicide, but that the proper verdict should be to convict him of contravening section 2 (c) of the Criminal Procedure & Evidence Act [Chapter 59] as read with section 40 of the _F Firearms Act [Chapter 308]. The verdict is altered to a conviction of a contravention of these Acts. It was a serious breach of the statute and I think the accused should receive the maximum penalty permissible­imprisonment with labour for six months. _G

The verdict and sentence are altered accordingly.

My brother Goldin agrees with this judgment.