The State v Mashwell Kurauone

The accused and an accomplice, Phillip Makore, boarded a Toyota Ipsum motor vehicle at Jerera Growth Point bound for Chiredzi with five other passengers around 9 p.m. They initially disputed the fare amount. At Chekenyere, after telling the deceased driver to lower the radio volume, the accused shot the deceased in the lower back from point blank range while the vehicle was still in motion. The accused and his accomplice then pulled the deceased out of the vehicle onto the tarmac. When passenger Innocent Mupoperi jumped out to flee, the accused shot him in the left thigh, with the bullet exiting through the right thigh. The accused and his accomplice then robbed the remaining passengers of their cash and cell phones. The accused was later arrested aboard a bus at Rudhanda in possession of a 9mm Vektor pistol with erased serial numbers. The accused had pleaded guilty to three counts of robbery.

• Whether the accused had the actual intention to kill the deceased (dolus directus) or acted with realisation of real risk or possibility of death
• Whether the accused intended to kill the complainant Innocent Mupoperi or shot with reckless disregard for life
• The credibility of the accused's version that he shot the victims outside the vehicle to immobilize them rather than kill them
• The admissibility and weight of warned and cautioned statements that contradicted the accused's testimony

The accused was found guilty of murder under s 47(1)(a) of the Criminal Law (Codification and Reform) Act in respect of Count 1. The accused was found guilty of attempted murder as charged in respect of Count 2. The accused had already pleaded guilty and been convicted of three counts of robbery.

Murder is established where the perpetrator either desires to kill (actual intention/dolus directus) or realizes the real risk or possibility of causing death but persists with such conduct (dolus eventualis). Actual intention to kill can be inferred from shooting a non-resisting victim from point blank range without justification or excuse. In attempted murder cases, intention to kill need not be proven solely by the body part injured; shooting from close range at a prone, vulnerable victim demonstrates either actual intention or realization of real risk of death with reckless disregard for that consequence. The term "constructive intent" is no longer part of Zimbabwean criminal law, having been replaced by "realisation of real risk or possibility" under s 15 of the Criminal Law (Codification and Reform) Act.

The court opened with the observation that "in this case life imitated art when it should be the other way round" and noted it was "even more worrisome that such gruesome acts took place in a would be serene rural set-up." The court expressed skepticism about the accused's belated challenge to his warned and cautioned statements, remarking "I cannot conceive how Police officers would be so generous to a suspect who had shot their colleague." The court used the phrase "fund raising" as a "euphemism for robbery" when discussing the accused's testimony. The court also noted that various factors beyond deliberate aim might affect where a bullet strikes, including lack of proper shooting technique, failure to hold breath before firing, gun recoil, and the shooter's emotional state.

This case is significant in Zimbabwean criminal law for several reasons: (1) It clarifies the application of the reformed terminology under the Criminal Law (Codification and Reform) Act, confirming that "constructive intent" has been replaced by "realisation of real risk or possibility" in murder cases; (2) It demonstrates how courts assess intention to kill based on the totality of circumstances including range of shooting, preparation, and whether the victim posed any threat, rather than solely on the body part injured; (3) It affirms the principle that shooting from close range at a vulnerable victim (even if not aimed at vital organs) can establish either actual intent to kill or reckless disregard amounting to murder/attempted murder; (4) It illustrates the weight given to warned and cautioned statements admitted under s 256(2) of the Criminal Procedure and Evidence Act and the difficulty of challenging such statements after consenting to their admission.