Assignment Title: Criminal Liability of Lana
Subject Area: Certificate in Law (Zimbabwe)
—
1.a. The preferrable charge against Lana
As the prosecutor, the most appropriate charge to prefer against Lana is murder. The facts indicate that she intentionally shot Jona in the head, an act which subsequently led to his death.
1.b. Essential elements of the charge of murder
In Zimbabwean law, the crime of murder is defined in Section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the “Code”). The prosecution must prove two essential elements beyond a reasonable doubt: the actus reus (unlawful conduct) and the mens rea (guilty mind).
Actus Reus The actus reus of murder is the unlawful killing of another human being. This involves three components:
- Conduct: There must be a voluntary act or omission by the accused. Here, Lana’s act was shooting a gun.
- Causation: The accused’s conduct must have caused the death of the victim. The facts state that Jona died at the hospital after being shot by Lana, establishing a clear link between her action and his death.
- Unlawfulness: The killing must be unlawful. While killing a person is prima facie unlawful, the act may be justified if a valid defence exists, such as self-defence.
Mens Rea The mens rea for murder is the intention to kill. Section 47 of the Code recognises two forms of intention:
- Actual Intention: This is where the accused’s aim and object is to bring about the death of the person. If the prosecution can prove that Lana aimed the gun at Jona’s head with the purpose of killing him, this would constitute actual intention.
- Constructive Intention (Dolus Eventualis): This exists where the accused foresees the possibility that their actions could result in death but proceeds with their conduct recklessly as to whether death occurs. By shooting Jona in the head, a highly vulnerable part of the body, it can be strongly argued that Lana at least foresaw the substantial possibility of causing his death, even if it was not her primary goal.
Given the facts, the prosecution would argue that shooting someone in the head demonstrates, at minimum, a constructive intention to kill, satisfying the mens rea for murder.
1.c. Draft indictment of the charge against Lana
IN THE HIGH COURT OF ZIMBABWE HELD AT HARARE
THE STATE versus LANA
CHARGE: Murder as defined in Section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
PARTICULARS OF THE OFFENCE:
In that on or about [Insert Date], and at or near [Lana's House Address], in the province of Harare, the accused, Lana, did unlawfully and with intent to kill, assault Jona by shooting him on the head with a firearm, thereby inflicting injuries from which the said Jona died upon admission at Parerenyatwa Hospital, and thus the accused did commit the crime of murder.
1.d. Possible defences that can be raised by Lana
The most significant defence Lana can raise is the complete defence of defence of another person, as provided for under Section 253 of the Code. This defence justifies the use of force to protect another person from an unlawful attack. For the defence to succeed, the following requirements must be met:
- Unlawful Attack: There must have been an unlawful attack upon the third person (Moris). The facts state that Jona had already struck Moris on the leg with a hammer and was lifting it "in a bid to strike Moris on the head." This constitutes an ongoing and serious unlawful attack.
- Imminence of the Attack: The attack must have commenced or be imminent. Jona lifting the hammer to strike Moris’s head clearly indicates an imminent threat of grievous bodily harm or death.
- Necessity of the Defensive Act: The conduct by the accused must have been necessary to avert the unlawful attack. Given the imminent threat of a fatal blow to Moris’s head, Lana’s intervention was necessary to stop Jona.
- Reasonableness of the Means Used: The means used to avert the attack must have been reasonable in all the circumstances. This is the most contentious element. The court will have to decide whether using a firearm to shoot Jona was a reasonable response to him wielding a hammer. While a hammer can be a lethal weapon, particularly when aimed at the head, a gun is generally considered a more deadly weapon. The defence would argue the force was reasonable because Jona’s next blow could have been fatal to Moris. The prosecution would argue that the force was excessive.
Partial Defence: Exceeding the Bounds of Defence
If the court finds that Lana genuinely believed she was acting in lawful defence but that the force she used was not reasonable (i.e., it was excessive), she may have a partial defence under Section 259 of the Code. This would mean that she is not acquitted entirely but can be found guilty of a lesser charge, such as culpable homicide, instead of murder. This defence acknowledges her genuine belief that she needed to act, but faults her for her unreasonable reaction.
References
Criminal Law (Codification and Reform) Act [Chapter 9:23] (Zimbabwe).
