The State v Bino Ndou

On 23 April 2017 at Nottingham Estates, Beitbridge, the accused (42 years old, employed as a guard at Chivhombwe Project) was caught by game scouts checking and resetting wire snares. The deceased Edward Ndou (28 years old, employed as a game scout) and two colleagues (Petros Moyo and Jeffrey Ncube) observed the accused poaching and advanced towards him after he beckoned them. The accused fled and during the pursuit, he shot the deceased in the right thigh from close range (approximately 1-2 metres). The deceased bled profusely and died approximately 20 minutes after arrival at a clinic. Before dying, the deceased made a dying declaration to Jeffrey Ncube stating "he had been shot by Bino". The cause of death was bronchoaspiration, haemorrhagic shock, fractured right femur, and gunshot wound. Ballistics evidence confirmed the fatal bullet was fired from the accused's Remington Express Magnum shotgun, with the plastic wad and lead pellet found inside the deceased's thigh indicating very close range shooting.

• Whether the accused was the person who shot the deceased
• Whether the shooting caused the death of the deceased
• Whether the accused acted in self-defence in terms of section 253(1) of the Criminal Law (Codification and Reform) Act
• Whether the shooting was accidental
• Whether the accused had actual intention to kill or constructive intent (dolus eventualis)
• Admissibility of dying declarations under section 254(1) of the Criminal Procedure and Evidence Act

The accused was found guilty of murder with constructive intent and sentenced to 15 years imprisonment. The court considered mitigating factors including: 6 months already spent in custody, that he was a first offender, a family man with wife and 4 children, and that he had sent condolences and assistance to the deceased's family (though rejected).

A person who shoots another with a shotgun at close range (1-2 metres), being trained in firearms, must be taken to have foreseen the possibility that death could result from such conduct, even if the shot was aimed at the thigh rather than a vital organ. Where the shooter then flees without rendering assistance and prevents others from helping, leaving the victim to bleed to death, this constitutes murder with constructive intent (dolus eventualis). A dying declaration is admissible where: (1) the declarant is dead at trial; (2) the trial is for murder or culpable homicide of that person; (3) the statement relates to the cause of death; (4) the declarant was dangerously ill without hope of recovery when making the statement; and (5) the declarant would have been a competent witness. The defence of self-defence under section 253(1) of the Criminal Law (Codification and Reform) Act cannot succeed where the accused claims not to have seen the person he shot, as one cannot defend against a non-existent threat.

The court made observations about the sanctity of human life and expressed society's revulsion over the accused's conduct. The court noted that the accused was engaged in illegal poaching (snaring animals) when he should have been complementing the game scouts' conservation duties, not undermining them. The court commented on the ballistics expert's clarification that the term "jammed" is often wrongly used—failure to fire is commonly due to haste, uncertainty or panic rather than mechanical jamming. The court observed that even if the accused had been 10 metres away (which was unlikely), he still should have seen the deceased, and if temporarily blind (also unlikely), should have heard him groaning. The court noted that while the accused's attempt to send condolences and assistance through family members (though rejected) showed some initial remorse and "a human face", this did not outweigh the seriousness of the offence. The court emphasized the need for deterrent sentences to uphold the sanctity of human life and deter reckless conduct with firearms.

This Zimbabwean High Court case demonstrates the application of the doctrine of constructive intent (dolus eventualis) in murder cases where actual intention to kill is not proven. It reinforces the sanctity of human life and establishes that a person trained in firearms who shoots another at close range with a shotgun can be found to have foreseen the possibility of death. The judgment also provides a clear exposition of the requirements for admissibility of dying declarations under section 254(1) of the Criminal Procedure and Evidence Act, applying English Law principles. The case emphasizes that post-shooting conduct (fleeing, preventing assistance) can be considered in determining foresight of death. It serves as a deterrent against reckless use of firearms and illegal poaching activities.