The State v Charles Chiwewe

On 1 September 2010 at Solar Farm, Nyabira, the accused was employed as a security guard armed with a 12 bore double-barrelled Webley and Scott shotgun. He had been trained in firearm use with instructions to fire into the air when confronted by thieves. During the night while guarding a potato field ready for harvesting, he was confronted by a group of thieves who attacked him. The deceased had previously been arrested twice for stealing potatoes from the same farm. While the accused was backing away from the attackers and attempting to bring up his gun to scare them, he tripped on a ridge of potatoes and the gun accidentally discharged. The deceased, who was within 24-30 meters range, was struck in the left side of the chest and later found dead. There was evidence of digging and metal rods at the scene. The accused immediately reported the incident to the head of security, explaining that thieves had attacked him and the gun went off when he fell. The post-mortem revealed death by hypovolemic shock due to gunshot wound.

• Whether there was sufficient evidence to prove the accused intentionally caused the death of the deceased
• Whether the requirements for discharge at the close of the state case under s 198(3) of the Criminal Procedure and Evidence Act were met
• Whether the accused's actions constituted lawful self-defence
• Whether the discharge of the firearm was accidental or negligent
• Whether the state proved all essential elements of the offence of murder

The accused was found not guilty and discharged at the close of the state case under s 198(3) of the Criminal Procedure and Evidence Act.

Where an accused person is attacked at night while lawfully guarding property, attempts to retreat, and a firearm accidentally discharges when he trips and falls, and all state evidence corroborates this account with no evidence of intention to kill or culpable negligence, there is no evidence upon which a reasonable court acting carefully could properly convict of murder. The state must prove not only causation of death but also the requisite mens rea. An accidental discharge during a genuine attack while attempting to retreat, corroborated by all available evidence including ballistic and scene evidence, negates the inference of intentional killing or negligence required for a murder conviction, warranting discharge at the close of the state case under s 198(3) of the Criminal Procedure and Evidence Act.

The court observed that ideally a ballistics expert should attend a post-mortem examination where shooting is involved, which did not occur in this case. The court also noted that extracting the projectile from the body and submitting it to the ballistics laboratory for examination together with the spent cartridge case would have been beneficial. The court referenced the general principle from S v Chikukutu that persons effecting arrests or defending property should give oral warnings ("Stop or I will shoot"), fire warning shots into the ground or air, and if necessary shoot at legs rather than vital organs. However, the court distinguished these requirements based on the specific circumstances of a nighttime attack by multiple assailants where the accused was retreating and fell accidentally.

This case is significant in Zimbabwean criminal law for its application of the discharge test at the close of the state case in circumstances involving alleged accidental discharge of a firearm during self-defence. It demonstrates that where all state evidence corroborates an accused's explanation of accidental shooting during a genuine attack by thieves, and there is no evidence of intention or negligence, discharge is appropriate. The case also distinguishes the duty to give warnings before shooting in circumstances where a person is under active attack at night by multiple assailants and accidentally discharges a firearm while retreating. It illustrates the proper application of the Kachipare test and emphasizes that the state must prove all essential elements of the offence beyond establishing that the accused caused death.