The State v Zachariah Baton

### Preamble
1
HCC 53/24
HCCR 479/24
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THE STATE

Versus

ZACHARIAH BATON

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI,17 June 2024

Assessors	1. Mr Mutombwa

2. Mr Kamanga

Criminal Trial

Mr. N. A Sibesha, for the State

Mr. F. Mhishi, for the accused

MUZOFA J: This murder case raises one issue for determination whether the accused is liable for the death of the deceased who fled from the accused and jumped into a river and died.

The background facts are largely common cause. On the 20th of January 2024 the accused who was in the company of one other person apprehended the deceased Tawanda Musona a suspected thief. They assaulted him using open hands and switches. They intended to take him to the farm office. Along the way, the deceased bolted. He ran away, they pursued him. Deceased ran and jumped into Munene River. The accused waited by the river for about 10 minutes. The deceased did not emerge. They then left. The deceased was discovered the later by the river bed.

The accused was subsequently arrested and charged with murder it being alleged that he assaulted the deceased with intention to cause his death or with a realization that death may result but persisted in the conduct.

The accused denied the offence. His defence was that he only slapped the deceased.

To prove its case, the State produced by consent the following:

Post mortem report. The cause of death was indeterminable, the deceased’s body had decomposed.

The accused’s warned and cautioned statement in which he gave a long narrative of what transpired on the day.

A sketch plan drawn on the indications of the accused and the witnesses.

The two witnesses who gave evidence, including the police officer confirmed the accused’s version of events. The deceased was assaulted, one Messiah tripped him. When the deceased’s body was recovered, the investigating officer said she did not see any injuries.

The doctor could not conclusively tell the cause of death. The post mortem report showed that most of the deceased’s body parts were swollen due to decomposition, but there were no injuries. It is also recorded that the accused’s body was discovered 5 days later.

In short, the accused and Messiah assaulted the deceased. The deceased in a bid to escape ran away from them, he did not want to go where the two would interrogate him. He ran into the river. The cause of death is not known.

The State must establish a causal link between the accused’s act or omission and the death of the accused. The charge of murder requires proof of both the unlawful action and intention to kill. State v Mungwanda 2002 (1) ZLR 57.

So, to what extent is D liable where the victim responds to D’s unlawful conduct in a manner that is dangerous to their well-being, contributing themselves to the resulting harm.

We are grateful to both counsel’s detailed closing submissions. They both traversed the correct position of the law on causation. Relying on the dicta in Mokgethi 1990 (1) SA 32 A @ 39-41 we were urged by the State to adopt a flexible approach that will meet the justice of the case. It was submitted that the assault per se may not have been the cause of death. There was no evidence that the accused inflicted fatal wounds. However, the accused created a situation where the deceased was cornered and was left with no option but to jump into the river. According to the State, but for the accused death would not have resulted.

The defence considered if there was a novus actus interveniens which is simply an act breaking the chain of causation. We were referred to the example in Snyman, Criminal Law, 6th Edition page 87 “where X assaults Y who runs away in order to avoid being assaulted further and then in the process sustains injuries leading to his death”. In such circumstances there was no intervening act. It was submitted that the deceased’s conduct to jump into the river was an intervening act that must absolve the accused .The deceased took a conscious risk.

We were referred to the case of The State v Viola Moyo HB 41/11 where the deceased who was only 10 years was found in the accused’s house. The deceased escaped he ran towards a dam and jumped in. She was convicted of culpable homicide. On appeal the Court held that the accused not only pursued a little frightened boy, she waited for him by the dam and threw stones at him while in the water as if to make sure he drowned. In our view the circumstances of that case are different from those before us. The deceased was not cornered at all.

In Causation in Criminal Law a thesis interrogating when resulting harms are attributed to individuals in Criminal Law, to develop the causation discourse the author referred to the flight principle. In a number of cases considered in that article, the  English Courts attached liability to D where D’s conduct prompted a response from X that is dangerous to their wellbeing provided the response was;

Reasonably foreseeable

Within the range of responses which might be expected from a victim.

An accused must be liable for harm that he could reasonably have foreseen and prevented. Thus, D must be liable for conduct which he reasonably ought to contemplate when deciding how to act. The second requirement is that X’s response must be within the range of responses which might be expected from a victim in her situation. Crudely put, the author opined that X’s response breaks the chain of causation if it was daft. The responses must be voluntary as in there were other options and he settled for the one .

The approach by the English courts then calls for an assessment of the circumstances surrounding the deceased’s death and the accused’s conduct.

The approach in my view gives some legal reasoning to exonerate or find D liable to X’s response. For instance to what extent is D liable where he chases X who runs into a busy road to avoid infliction of harm by D and is struck by a motor vehicle?. What are the determinant considerations?

In R v Roberts (1971) 56 Cr App R95 a woman subjected to sexual assault jumped from a moving car. She sustained injuries. The accused was charged with assault and sexual assault. He was convicted of assault. He appealed the decision which appeal was dismissed.

The issue before the appeal Court was whether the accused was responsible both in fact and in law for the injuries caused by her leaving the moving car?

The appeal court held that, the test for whether a victim’s own acts broke the chain of causation was whether the act was a natural consequence or result of what the assailant did or said?  If the victim’s act was so unexpected that it could not be foreseen by a reasonable man then the act would be a remote and unreal consequence of the assault and as such would then break the chain of causation.

Later in R v Williams & Davis (1991) 95 Cr App  the test in the Roberts case  (supra)was applied with some modifications. The accused picked the deceased, a hitchhiker. Along the way it was alleged they attempted to rob him. The deceased was agitated and afraid, while in this mental state he jumped out of the moving motor vehicle. He sustained injuries that led to his death. The issue before the Court was whether the deceased’s act of jumping out of the car broke the chain of causation.  The victim had jumped out of the car and this was an act of his which may have been argued to have broken the chain of causation between the accused’s unlawful act of robbing the victim and his death.

The Court also considered the role of foreseeability of the victim’s actions in the accused’s guilt. The court opined that this required a consideration also of the deceased’s subjective state of mind. There must be a consideration of his psychological state and any peculiar characteristics and an acknowledgement that the stress of the situation or event may have led the deceased to act without thought.

The court acquitted the accused persons on the basis that there was no evidence of what transpired in the motor vehicle. The only available evidence was from the accused which did not establish any threat of physical harm. The court concluded that the deceased’s reaction was not within the range of reasonable responses available to him. In other words the reaction was not proportionate to the threat.

Although the  Roberts (supra)  and the Williams(supra) cases both took place in a moving motor vehicle , what distinguishes them is that there must be evidence of the extent of the threat. Such evidence was not available in the latter case of Williams. Otherwise the test on foreseeability, proportionality and, as further refined in the Williams case, the deceased’s fears and subjective circumstances still apply.

In short it appears that for the deceased’s conduct to break the chain of causation the State must establish that,

The deceased was under some threat or was under an attack.

The deceased’s response to the threat or attack was reasonably foreseeable

The response was within the range of responses which might be expected from a victim.

The response was non voluntary.  Being non voluntary could be where X is cornered and would have no option but to take the fatal step to escape from D yet exposing himself or herself to injury.

In assessing these factors the Court must take into account both the circumstances of the case and the deceased particularly his or her mental state in view of the threat or attack.

Although it is termed the flight principle, the issue is still on causation whether X’s conduct breaks the chain of causation. It is our considered view that the approach can well be applied in this case.

For causation to be established the following must be established,

The State must establish if there is a causal link or nexus between the accused’s initial conduct and the consequences. If there is no causal link there is no liability. If there is a causal link the State must prove the following next stage.

The State must prove whether the accused’s conduct is the proximate cause or is sufficiently close and strong that as a matter of law he must be found liable.

We consider whether the deceased’s conduct broke the chain of causation in other words whether it was an intervening act.

In this case the sketch plan shows that the setting of the scene of crime. From the point that the deceased was assaulted and fled from the accused he crossed the Banket Raffingora road. To his right about 200 meters there was a police road block. To the left there was nothing he could have run towards his left along the road. He crossed the road and ran into Madzingura Farm. He ran for about 250 metres there was adequate room to flee in any other direction except to the river. When he got to the river he jumped in when the accused were about 7 metres from him. Only two people pursued him.

In our view with the aid of the flight principle we asked ourselves the pertinent questions. Was the deceased under attack? Yes he was. Was the deceased’s response to the unlawful attack reasonably foreseeable? We do not this so. We also consider that the accused intended to take him to the office. The deceased ran for quite some distance and had options. There were police officers nearby if intended to get protection from the accused’s attacks he could have gone to the police. He was not cornered. This is different from the S v Robert case (supra) a case of sexual assault in a car she was literally in a compromised position she risked being raped.

There was ample room for the accused to flee in any other direction save for the river. Even though the accused pursued him to about 7 metres of the river it was not reasonable to jump into the river.

Was the deceased’s conduct voluntary. Yes it was. He had options to flee in any other direction except the river. There was evidence that the river was full of water and it was known that it had crocodiles.

For an act to constitute an intervening act, there must be a new set of factors that breaks the link between the accused’s conduct and the result. For instance in State v Chiturumani HMT 17/20 the accused assaulted the deceased (a minor) with a switch. The deceased tried to escape, he hit against a Musasa tree. The post mortem report showed that death was due to head and neck injuries. The court concluded that the collision with the tree was a novus intervens. The accused was found guilty of assault. The cause of death had nothing to do with the assault by the accused.

In S v Mcendisi Moyo HB 25/24  the State alleged that the accused assaulted the deceased and  pursued him to the river ,he jumped in and was later found dead. The post mortem examination could not detect the cause of death due to the advanced state of the decomposition. The court acquitted the accused after finding the State witnesses not credible. We were referred to this case by the defence but it turns out that the determinant factors in that case do not apply in this case.

We were not persuaded that the accused intended to cause the death of the deceased neither did he foresee that death may result and persisted in the conduct. The evidence before the court shows that the accused and his colleague assaulted the deceased using open hands and switches. What transpired later, the jumping into the river cannot be attributed to him. The deceased was not cornered. He could have fled in any other direction except for the river. He took a conscious risk. We are alive to the fact that the deceased laboured under some stress and was not in his sound and sober senses to make a free will decision. However it may be a dangerous precedent to attribute every reaction to an accused in such circumstances. We certainly agree with the flight principle that the reaction must be reasonably foreseeable. In this case it was not. Apparently it was said the river had lots of water and was known to be crocodile infested.

Accordingly the accused is found not guilty and acquitted on the charge of murder. He is found guilty of assault in contravention of s89 of the Criminal Law Codification and Reform Act ( Chapter 9 :23)

Sentence

In mitigation we considered that the accused is a youthful first offender aged 20 years. He has been convicted of a less serious offence of assault although the Court will not lose sight that the  accused’s highhandedness led the deceased to take the risk to jump into the river. For the accused it was submitted that we should consider a wholly suspended sentence or a custodial sentence wholly suspended on condition of performance of community service.    We were urged to take a leaf from the case of S v Chafanza HMA 27/18 beerhall fight convicted of culpable homicide 12 months wholly suspended for 5 years . Also in S v Nyarongwe HH321/15 the accused was acquitted of murder and convicted of assault the court imposed a wholly suspended sentence.

The accused’s efforts are commendable. They were the model good citizens. They started well, but the ending was bad. They were simply policing their area and intended to effect a citizen’s arrest on the deceased who they suspected to have stolen some goods. Unfortunately they were overzealous. They assaulted the deceased before they even established whether he had indeed stolen. They were the police and the court at the same time. Such conduct should be discouraged. A life was lost as a result of their highhandedness. They must have taken the deceased to the police manning the road block. They were just a stone’s throw from them.

A statement from the deceased’s brother was filed. The deceased had no family responsibilities and he explained how the family was traumatised by the death.

The State urged the Court to impose a short custodial sentence due to the loss of life. We are not persuaded. The accused was not convicted of murder nor culpable homicide. His blameworthiness is in respect of the assault. The cause of death is unknown. The probabilities are that the deceased drowned as opposed to death due to the assault. The accused has been in custody for 5 months. A custodial sentence with a portion suspended on the usual conditions and the remaining suspended on condition of performance of community service will meet the justice of this case.

The following sentence is imposed.

18 months imprisonment of which 6 months imprisonment is wholly suspended on condition within that period the accused is not convicted of an offence involving violence for which upon conviction he is sentenced to imprisonment without the option of a fine .The remaining 12 months imprisonment is wholly suspended on condition the accused completes 420 hours of community service at Banket Police Station .Community service starts on 17 June 2024 and must be completed within 12 weeks. It must be performed between the hours of 8a.m  to 1 p.m and 2pm to 4pm each Monday to Friday which is not a public holiday to the satisfaction of the person in charge of the institution , who may on good cause grant the accused permission to be absent on a particular day or days during certain hours but such leave of absence shall not count as part of community service to be completed.

National Prosecuting Authority, the State’s legal practitioners

Legal Aid Directorate, the accused’s legal practitioners