THE State V MARK Patrick SHAW

### Preamble
1
HCC16/23
CRB66/22
HC66/22
CHN364/18
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THE STATE

versus

MARK PATRICK SHAW

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 28, 29 September, 21October 2022,7 February & …. May 2023

Assessors

1.Mrs Mawoneke

2. Mr Manyangadze

Criminal Trial

K Teveraishe, for the state

DP Drury, for the accused

MUZOFA J [1] The only issue for determination in this case is whether the accused person who shot the deceased to effect an arrest had the requisite intention to cause the death of the deceased.

[2] The allegations are that on the 1st of April 2018, the accused shot and caused the death of one Edmore Phiri. He appeared before us facing a charge of murder in contravention of s47 (1) of the Criminal Code.

[3] The accused denied the charge. He said he had no intention to cause the death of the deceased but to arrest him. He suspected that the deceased must have been hit by a bullet that had ricocheted.

Background

[4] This offence was committed in 2018. After the investigations the accused was arraigned and appeared before the High Court sitting in Harare. The proceedings commenced but could not be finalized for reasons that are irrelevant for the purposes of this trial. This is therefore a trial de novo after the quashing of the uncompleted proceedings.

[5] The accused operates a security company that provides security services in most of the areas in and around Chinhoyi. His company works closely with the Police since he is a former policeman and a member of the Special Constabulary.

[6] On the 1st of April 2018 he received a report of a robbery that had taken place at one Bruce Douglas’s place in Lions Den. He engaged Chinhoyi Police for assistance. He could not be assisted at Chinhoyi Police, he was referred to Murereka Police Station which was the nearest police station to the scene of crime.

[7]   He proceeded to Murereka Police Station where he secured two police officers to accompany him to the scene of crime. Sadly or unfortunately the police neither had transport nor a firearm to properly execute their duties.

[8] The accused provided the police officers with transport and they proceeded to the scene of crime. The accused was armed with a pistol, a CZ75B Cal 9 Luger serial number 4312C.

[9] They drove to the scene of crime. Along the way he was communicating with Nathan Douglas, Bruce’s son. Nathan described how the suspect was dressed as described to him by his father Bruce.

[10] When they arrived at Murereka shopping Centre, Nathan who was driving another vehicle identified the suspect who was the deceased. He tried to talk to him but the deceased took to his heels and ran away. That was the beginning of the chase.

[11] Nathan called out ‘thief’ and the community members that heard and cared to assist responded to the call. A mob of people chased the deceased. The accused and the two police officers were still driving but from a different direction.

[12] The accused stopped his car at some point at the shopping centre. As fate would have it, the deceased ran towards them and one of the police officers tried to block his way. The deceased pushed or shoved the officer who fell and the deceased proceeded on his run.

[13] When the deceased evaded the police officer the accused then fired three shots. There is a dispute as to how many shots hit the deceased. The state alleges that two shots hit the deceased. The defence allege that one bullet hit the deceased. Regardless of the number, the deceased later succumbed to the gun injuries.

[14] It is therefore not in dispute that the accused was the factual cause of the deceased’s death.

The State Case

[15] The following were produced by consent of the defence, the post mortem report,

[16] Four witnesses gave oral evidence before the court. Nathan Douglas was the first witness to give evidence. He received a report of an attack on his parents at their homestead in Murereka.

[17] He rushed home and saw both his parents at his place. His father had sustained serious injuries and was coughing blood. Despite his condition he described their assailants. One of them was said to be a short muscular man. He put on a blue tight basketball shirt and an off-white pair of shorts.

[18] He drove to the nearby shops on surveillance just in case he could identify the assailants. He did notice someone matching the description. He also saw two people at the shops that he shared his parents’ ordeal with and asked them to watch for any suspicious behavior.

[19] He reported the matter to both the accused who provided them with security services and to the police.

[20] As he drove to another village, he met the accused in the company of two police officers along the highway.

[21] They drove to the Beerhall where he had seen someone, he suspected to be the assailant. When they arrived, he identified the deceased. He ordered him to stop but the deceased ran away. Some people chased him. He later heard gun shots.

[22] Linda Mutumbani was the second witness. She was a police officer at Murereka Police Station.

[23] She was on duty when the accused reported a case of robbery. She was assigned to proceed to the scene of the crime together with one Sergeant Mhlanga (who was a constable at that time) and the accused. They could not find the keys to the gun cabinet, so they proceeded to the scene without a police firearm. There was no vehicle to take them to the scene. The accused provided the transport.

[24] Along the way they received information that the suspect was running towards Murereka Shops. They proceeded to the shops. She saw a crowd of people chasing the deceased. Sergeant Mhlanga tried to apprehend him but the deceased sideswiped and continued running.

[25] Immediately after the deceased passed Sergeant Mhlanga she heard gun shots one bullet hit a shop glass, a second shot hit the deceased on the left arm. She could not remember where the third bullet hit.

[26] The deceased kept on running and went round some shop where he sat on a slab. Sergeant Mhlanga was still in hot pursuit. When she finally got to where the deceased sat, she noticed that the deceased was bleeding profusely from his left side above his chest. Nothing was recovered from the deceased.

[27] The accused offered transport to ferry the deceased to the hospital, the offer was not accepted, people had gathered and the atmosphere was tense. They sought alternative transport and prepared the paper work to take the deceased to the hospital.

[28] Asked to comment on the shooting, she said the accused was supposed to fire a warning shot, if the suspect did not stop, he must have fired targeting the legs.

[29] Sergeant Mhlanga was the third witness. His evidence was almost similar to Constable Mutumbani’s evidence. On the firing he said a firearm is only used where there are no other means to apprehend the suspect. He said three warning shots must be fired first. If the suspect does not stop one can shot to disable aiming the legs.

[30] In this case he had identified the suspect, he knew his name and knew his place of abode. The police would have investigated the matter and apprehended him anywhere.

[31] He also said initially he thought the three shots fired by the accused were warning shots since the deceased kept on running even after the shooting. He was surprised when he realized that the deceased had been hit.

[32] The last witness was Sergeant Majecha who took over the investigations from the initial investigations officer. The state produced through him the gun that the accused used. He said it was a police issued gun since it had a Zimbabwe Republic Police serial number 1736.The ballistics report was also produced through him.

[33] Since the witness took over the investigations after sometime he could not recover anything from the scene of crime. He just took the accused and witnesses for indications.

[34] He also commented on the standard for using a firearm. He said warning shots must be fired. In the event the suspect continues to flee one can shot to avoid escape and not shoot to kill. He referred to some Police Manual where the information could be found. He failed to produce the said the manual. He was quizzed on this issue but it was evident that there was no document to support his evidence.

The state then closed its case.

The defence case.

[35] Two witnesses gave evidence including the accused person. The accused person in his evidence in chief explained what transpired when the deceased dodged the Sergeant Mhlanga and kept running away very fast.

[36] He told the court that when he realized that Sergeant Mhlanga could not apprehend the deceased, he withdrew his pistol and shot towards the building. The deceased continued to run. He then fired two shots at the deceased aiming low, slightly to the deceased’s right. The deceased suddenly turned right and continued to run. He was actually surprised that he hit the deceased. Thus, his sincere belief that the deceased was hit by a bullet that ricocheted.

[37] He explained why he shot at the deceased. His thought process was clear from one of his responses when asked, did he think about what he was about to do, he responded,

‘When you are in a life-threatening situation, there is no time to think rationally. The police were not armed. I acted to effect arrest because the police had been over powered. There were no prospects of arrest.’

[38] The rest of his evidence related to what transpired after the shooting. Of note is that he offered transport to ferry the deceased to the hospital. The offer was declined. He believed that had the deceased obtained immediate attention he may not have died. There was a delay in taking him to the hospital.

[39] He was also asked about evidence placed before the initial trial, just to reconcile certain facts but that did not change the issues in this case.

[40] The accused also explained the circumstances surrounding his arrest. It would appear there was divided opinion whether he should be arrested or not. He was not arrested immediately after the commission of the offence. He was invited to Chinhoyi Police Station after sometime. He said he was surprised because he had been assured that no arrest would be made.

[41] The court will not concern itself with those issues. This court cannot determine who should be arrested or not. Its mandate is to interpret the law. The prerogative to arrest and prosecute lies with other arms of Government.

[42] The second witness was Bruce. He described how they were attacked. It was a brutal attack. He described the one person he identified as a suspect. From the photographs that were produced before the court by the defence, he sustained serious injuries.

[43] Bruce believed the attack was more than a mere robbery. There could have been something more. Mr Samukange who initially represented the accused had taken a slant that this was a politically motivated attack. This was not taken further. What is evident is that Bruce was attacked but nothing was stolen from his house.

The defence then closed.

The closing submissions

[44] In terms of s200 of the CPEA both the state and defence are entitled to address the court summing up the case and the relevant law. The wording in that section means oral submissions. However, a practice has developed in our courts where necessary, that legal practitioners file written submissions. We allowed both legal representatives to file written submissions.

[45] It was disconcerting that both representatives did not comply with the court’s directives. The defence case closed its case on the 20th of February 2023. The state was required to file its closing submissions by the 28th of February and the defence to file its closing submissions by the 9th of March 2023.

[46] The state filed its closing submissions on the 1st of March. The defence counsel requested for some extension which was granted up to the 31st of March but still no submissions were filed until the 13th of April 2023 and after a number of phone calls.

[47] I comment on this issue as it contributed to the delays in the preparation of the judgment. Generally speaking, courts are inundated with cases. Each case has its specific time that it must be dealt with. So, delays in filing such submissions interferes with the proper organization of the court’s work. Where directives are given legal practitioners as officers of the court are enjoined to comply with directives. Such conduct disrupts proper planning and quick disposal of matters. The court could have simply proceeded without the closing submissions, but it considered that it would be in the best interest of justice that the submissions are filed for a proper ventilation of the case.

The State’s closing submissions

[48] The state made a concession that the accused cannot be found liable for murder. He lacked both the actual or legal intention to commit the offence. It relied on the case of Director of Public Prosecutions, Gauteng v Pristorious, where the court extensively discussed intention in murder cases.

[49] Despite that concession the State’s submission was that the accused was negligent in his conduct to fire shots at the deceased without firing warning shots. He must be found guilty of culpable homicide. We were referred to the case of S v Moyo  on the test applicable for negligence.

[50] We were also referred to s 42 of the Criminal Procedure and Evidence Act (Chapter 9:07) [ the CPEA] which deals with use of force in the process of arresting a person. It concluded that in view of the fact that the deceased was not armed he was not dangerous, he was actually fleeing from the mob and the police, he was not a threat to anyone and no one was at risk from the deceased. A reasonable man would have taken steps to avert the death. The accused was negligent in his conduct.

The defence’s closing submissions.

[51] The defence filed detailed closing submissions analysing the evidence and the law. However, the thrust of the submissions is that the accused is neither liable for murder nor culpable homicide.

[52] The defence distinguished the Moyo case (supra) relied upon by the State that it cannot be persuasive in this case. In that case, it was submitted, the accused who was a police officer was found to be negligent for discharging a firearm in a crowded town area and struck a pedestrian.

[53] In this case, the accused was faced with a suspect who had committed a 1st schedule offence and was escaping. He had defied a police order and could have escaped. When the accused shot at the deceased, he did not shoot blindly. He aimed at the building first and then on the lower sides of the deceased’s body. He believed that one of the bullets hit a hard object and deflected resulting in it hitting the deceased. No expert evidence was led to disprove this therefore the accused must be given the benefit of doubt.

Factual and legal analysis

[54] The onus of proof lies with the state to prove its case beyond a reasonable doubt. In murder cases it must prove that the accused was both the factual and legal cause of the deceased’s death. For the factual cause the test is, but for the accused’s conduct the deceased would not have died. We have already made a finding that the accused was the factual cause of death. The legal aspect is a matter of intention.

[55] Intention is concerned with the subjective state of mind of an accused. A court cannot get into the accused’s mind. There can be no direct evidence of intention unless the accused admits to have held the requisite intention. Thus, intention is inferred from the circumstances and all the other available evidence to determine what the accused must have been thinking.

[56] The state must prove beyond a reasonable doubt that the accused had the actual intention to cause the death of the deceased or subjectively foresaw that death may result but proceeded in his conduct. In other words, the accused reconciled with the fact that death may occur but proceeded all the same.

[57] In S v Sigwahla the court said:

"… the following propositions are well settled in this country.

The expression "intention to kill" does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis, as distinct from dolus directus...

That position of the law is still applicable in our jurisdiction.

[58] We agree with both legal practitioners that the accused lacked both the actual or legal intention to cause the death of the deceased. The uncontroverted evidence was that the deceased was suspected of having committed an offence. He was at one point asked to stop he did not. He was chased by a mob. The police joined in the chase but the deceased still continued in his bid to escape. He actually dodged the police officer in uniform who tried to apprehend him.

[59] The accused was the only person armed with a firearm. It is at that stage that the accused shot at the deceased. Under such circumstances there can be no inference that he had an actual intention to kill. For such intention to suffice, the accused must go out with an intention to cause the death and indeed subsequently cause the death. The circumstances of this case do not show that when the accused pulled out his firearm intended to cause death, his intention was to facilitate an arrest.

[60] Similarly he could not have subjectively foreseen that death may result and reconciled with that fact. He even said he was surprised that he had shot the deceased. The charge of murder is not sustainable in the circumstances.

[61] The next issue for determination is whether the accused can be found guilty of the competent verdict of culpable homicide as per the submissions by the State.

[62] Culpable homicide is the negligent causing the death of another. The notion of negligence connotes that the accused lacked the intent to cause death. It is said that the accused is not being punished for his evil intent but for being careless.

[63] Since the accused shot the deceased in a bid to arrest him, his negligence is measured against s47(1) of the CPEA which provides for use of minimum force when arresting a suspecting who is resisting arrest or is fleeing. The court must consider if the accused maybe excused under the said provision.

[64] In its closing submissions the defence, briefly referred to the provision and opined that the accused was justified in his conduct. The State canvassed the said provisions and concluded that the accused’s conduct does not fall with the confines of the section.

[65] For the defence it was submitted that the court must not take an armchair approach, the accused’s evidence was clear that he believed the deceased was armed and dangerous. All the shots that were fired were warning shots.

[66] Having regard to the circumstances of this case we are unable to agree with the defence on this aspect.

[67] The law recognizes that at times it is necessary to use force to effect an arrest. It then provides for the use of minimum force to overcome any resistance from the suspects. What constitutes minimum force depends on the circumstances. For instance, there can be no justification to use a firearm against an unarmed suspect who has not resisted arrest. In our view use of excessive offence, depending on degree may indicate some form of negligence or even an intention to cause the death of the suspect.

[68] Minimum force can be used to subdue and   arrest a suspect subject to s47 (1) of the Criminal Procedure and Evidence Act (Chapter 9:07) subject to the following,

The person using the force must be authorized to arrest or was assisting in arresting another person.

The person intended to be arrested resists such efforts or cannot be arrested without the use of force.

The person attempting to arrest may use force reasonably justifiable and proportionate in the circumstances.

The person sought to be arrested was committing or committed or suspected to have committed an offence referred to in the First Schedule.

And the proviso to the section requires that, the person attempting the arrest believes on reasonable grounds that:

The force is necessary to protect either the person attempting to arrest, a person assisting in the arrest or any other person from imminent or future death or grievous bodily harm.

There is risk of immediate or future conduct by the suspect that will result in death or grievous bodily harm if the arrest is delayed.

The offence taking place is of a serious nature and involves use of violence and is likely to result in grievous bodily harm.

Subsection (2) thereof expresses the legislative intention that in the case of use of lethal force there must be strict compliance with the requirements set out in subsection (1).

[69] The provision provides for the use of reasonably justifiable force to overcome resistance to arrest or effect arrest on a suspect trying to escape. Otherwise without such a provision it would be difficult to arrest some suspects. In essence the arrestor’s powers are not absolute. They are subject to the provisos under s47 (1) to curb abuse of the power. Those reposed with powers of arrest are required to use minimum force in terms of the law. This is a balancing act, to give some leverage for the arrestors to apprehend suspects while protecting members of the public.

[70] If the conduct of a person effecting arrest falls outside the provisions of s47 of the CPEA, negligence maybe inferred. In other words, any force falling outside ‘reasonableness’ in any given circumstances will be deemed to be excessive force.

[71] In S v Burdett  it was held that the general principle that killing by excessive use of lawful force may be culpable homicide is well settled. In that case a fleeing poacher was shot and killed. The poacher had been warned to stop or he would be shot, he continued to flee. The land owner subsequently shot him. The appeal court held that, there was excessive force used since there was no warning shot fired.

[72] Although the accused intended to effect an arrest his conduct does not fall within the provisos to s47. At the time he withdrew the firearm to shoot, no one was under threat from the deceased. Bruce had already been attacked. The accused was not protecting anyone. There was no immediate or future threats of harm from the deceased. If anything, the deceased was just intent on his mission to escape. At that time the deceased was not committing an offence.

[73] We wonder why the accused in his evidence in chief referred to a life-threatening situation. There was no such situation when he shot at the deceased. The life-threatening attack on Bruce had ceased. He was labouring under a misguided belief, there was no threat to life. Even the dodging of Sergeant Mhlanga was not life threatening. It was not like the deceased deliberately attacked the officer, he was simply finding his way around the officer. We are fortified in this inference that the deceased posed no threat to anyone because when he finally sat down Constable Mutumbani said he had no weapon in his possession.

[74] Constable Mutumbami’s evidence puts paid the accused’s suspicions. The accused also said he suspected that the deceased was armed with a knife. The suspicion was not supported by any evidence. It was not reasonable. No knife was used to attack Bruce, if he had a knife he could have used it on Bruce. Bruce’s assailants used stones. There was no basis for the belief, it was farfetched. There was no life-threatening situation. We reject this insinuation. The police witness actually said they had identified the deceased. Bruce also said he was a well-known local person. The police witness said they could have arrested him later if he had successfully escaped.

[75] Where a person is in possession of a lethal weapon like a gun, he must exercise uttermost care in its use. The benchmark is quite high thus in terms of subsection (2) of the said section, there must be strict compliance with the provisions of subsection (1) where there is use of a lethal weapon.

[76] An issue arose during trial on how many warning shots must be fired and where they should be aimed. There was no expert evidence. However, the lack of expert evidence should not detain the court. Such cases have been decided and pronouncements made that can guide this court.

[77] The position enunciated in Matlou v Makhubedu  referred to in the Burdett case (supra) is the acceptable standard. In that case, in a claim against a police officer sued for damages by a fugitive whom he had shot in the back while attempting to lawfully arrest him the court had this to say,

"If circumstances permit, an oral warning should be given. Then, if that does not help, a warning shot should be fired into the ground or in the air, depending on the circumstances, and after that the arrester should try to shoot the suspect in the legs."

[78] The approach is reasonable bearing in mind that, a firearm is a lethal weapon and everyone is expected to value the sanctity of life.

[79] In this case the accused fired the first shot towards a building. He did not fire into the ground or the air. He had 10 years’ experience in the police force. He was a special constabulary working closely with the police. He must have known about warning shots and where they should be directed.

[80] The accused also said the other two bullets were fired slightly to the right of the deceased. The deceased suddenly turned right and ran southwards. It is one of the bullets that he suspects could have ricocheted and hit the deceased.

[81] We do not agree with this submission by the defence. The deceased was not hit by one bullet. The medical report does not confirm the defence’s submissions.

[82] The doctor who examined the deceased recorded the injuries as follows.

I. Gunshot wound noted right posterior chest. Exit wound noted right anterior chest between 2nd and third rib.

II. Gunshot wound noted posterior mid forearm. Exit wound noted on anterior left mid forearm.

[83] It is apparent that the deceased was hit on the forearm and back of the chest. Each of the bullets made and entry and a distinct exit on different parts of the deceased’s body. There is no need for an expert opinion to confirm that two bullets hit the deceased. The suggestion that there was a ricochet is unreasonable and we dismiss it.

[84] In our view what transpired on the day is that the accused having fired the first shot and the deceased kept on running away he fired the second and third shots aiming at the upper torso of the deceased. He did not fire towards the legs. Had he aimed at the legs even if the deceased took a sudden turn he would have been hit on the legs. There is no way a bullet aimed on the legs would hit a forearm and the chest. Ordinarily the legs are part of the lower part of the body and the forearm and the chest are part of the upper part of the body.

[85] In his bid to effect arrest the accused failed to shoot to disable but he shot to kill. This could a murder with constructive intention but for the intention already established that he intended to effect an arrest. Although all the witnesses said it was getting dark, they could still see what was happening. The accused also said he could see that is why he could testify where he aimed when he shot.

[86] The accused was not an ordinary citizen effecting a civilian arrest. He was a former police officer with ten years of service in the force. He was an inspector when he left service. He continued in service as a Special Constabulary. He worked closely with the police. He operates a security company. He was not a novice in the use of firearms. He must also have known about the use of minimum force in arresting suspects.  So he must be judged against a reasonable person with some level of understanding in both the use of firearms and the applicable law.

Disposition

[87] Having regard to the accused’s exposure in the police force, he was knowledgeable on the use of firearms. He could have exercised some restraint. He acted precipitately on the day. He could have fired to disable the deceased and not aim at vulnerable parts of the body. He used excessive force in effecting arrest. As already stated on these circumstances he cannot be liable to murder but to the competent verdict of culpable homicide.

Accordingly, the accused is found guilty of culpable homicide.

Sentence

National Prosecuting Authority, the State’s legal practitioners.