The State v Chrispen Chipurura

The accused, a qualified teacher, was in a relationship with Abigail George, the mother of three-year-old Nigel Josi. On 27 October 2008, the accused visited Abigail at her home, but she was no longer interested in the relationship and left him locked in her house overnight while she went to stay with a friend, Brenda Chaparira. Early the next morning, Abigail returned home. A dispute arose when Abigail told the accused never to return, and the accused demanded his clothes, items, and money he claimed to have given or loaned to her. According to Abigail, the accused then attacked her with an axe outside her home, causing her serious injuries including the loss of her left eye. The accused's version was that when he took Abigail's jacket and sneakers as security for his money, she bit his left thumb, and in attempting to extricate himself, he stumbled on an axe and struck her. When she dodged a second blow, he fatally struck the deceased child, Nigel Josi, on the head. The child died from the injury. The accused then attempted suicide by slashing his own neck with a knife. There was dispute about whether the child was on his mother's back at the time or had followed her independently.

• Whether the accused had the requisite intention to murder the deceased child
• Whether the doctrine of aberratio ictus (transferred intent) applied
• Whether the accused subjectively foresaw the possibility that the deceased might be killed
• Whether the accused was guilty of murder with constructive intent under section 47(1)(b) of the Criminal Law (Codification and Reform) Act
• Whether the alternative verdict of culpable homicide under section 49 should be returned

The accused was found guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Cap 9:23] (murder with constructive intent).

Where an accused person engages in conduct (attacking a person with a deadly weapon) and realizes that there is a real risk or possibility that such conduct might cause death to another person (such as a child being carried by the intended victim), and having realized this continues to engage in the conduct reckless as to whether or not death ensues, the accused has the requisite legal intention (constructive intent) for murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act. In cases involving unintended victims, the aberratio ictus rule does not apply; instead, the court must examine the accused's intention in relation to the unintended victim on the basis of subjective foreseeability to determine whether the accused foresaw the possibility that the unintended victim might be killed.

The court observed that the accused could have been charged with attempted murder of Abigail George based on the serious injuries he inflicted on her, including causing her to lose her left eye. The court noted that for some unknown reason this was not prosecuted. The court also commented on deficiencies in the investigation and evidence presentation, noting that a sketch plan of the scene would have been helpful, and that certain aspects regarding the blanket used to carry the child and the positioning of bodies remained unresolved due to inadequate investigation. The court further noted that all crimes except those providing for strict liability require proof of some mental ingredient, with the two main mental states being intention and negligence.

This case is significant in Zimbabwean criminal law as it applies the principles established in S v Mpala and S v Ncube regarding the treatment of unintended victims in homicide cases. It demonstrates the rejection of the aberratio ictus (transferred intent) doctrine and the application of constructive intent/legal intention based on subjective foreseeability. The case clarifies that where an accused person attacks one victim while knowing another person (such as a child on the victim's back) is present and at risk, and realizes there is a real risk of causing death to that other person but continues with the attack, constructive intent for murder can be established even though the death of that person was not the primary objective. The case also illustrates the codified approach to mental elements in crime under the Criminal Law (Codification and Reform) Act.