The State versus Aaron Hakutangwi

On 7 March 2008 at Mabelreign Shopping Centre in Harare, the accused and the deceased were drinking together. They were both involved in tree cutting business with one Tapiwa Gora. A dispute arose between the accused and Tapiwa regarding payment for work done in Raffingora. The accused made insults against the Gora family, resulting in Tapiwa's younger brother Danmore slapping the accused. The accused ran out of the bar and threw stones inside, one striking Innocent Makoto. The accused then threw a piece of brick which struck the deceased on the head. The deceased fell on the tarmac and died. Post-mortem examination revealed a depressed fracture with subarachnoid haematoma, with the cause of death being fractured skull and diffuse axonal injury from assault. The accused claimed he was intoxicated and that he was defending himself from attack by Tapiwa and Danmore, and that when he threw the brick he was aiming at Danmore but missed and struck the deceased instead.

• Whether the accused had the necessary mens rea for murder in relation to the deceased
• The extent of the accused's intoxication and whether it negated criminal liability
• Whether the defence of provocation was available to the accused
• The application of the doctrine of aberratio ictus (deflected blow) in Zimbabwean criminal law
• Whether the accused could be convicted of murder based on transferred malice or constructive intent
• Whether the accused's intention towards the intended victim (Danmore) could be attributed to the unintended victim (deceased)

The accused was found not guilty of murder but guilty of culpable homicide.

In cases of aberratio ictus (deflected blow), an accused cannot be convicted of murder of an unintended victim without having the requisite mens rea (dolus) toward that specific victim. Where an accused intends to harm one person (A) but accidentally kills another (B), the accused can only be convicted of: (1) attempted murder of the intended victim (A) toward whom he had dolus, and (2) culpable homicide of the unintended victim (B) toward whom he had mens rea in the form of culpa (negligence). The doctrine of transferred malice as articulated in R v Mabena is rejected as contrary to principle because it permits conviction for an offense for which the requisite mens rea is lacking. Constructive intent is no longer part of Zimbabwean criminal law under section 15(4) of the Criminal Law (Codification and Reform) Act.

The court commented on the unexplained delay of six years before the matter came to prosecution. The court also noted that prosecutors and legal practitioners must be alive to the developments in the law, particularly regarding the abolition of constructive intent under the Criminal Law (Codification and Reform) Act. The court criticized the State's approach in seeking a verdict based on the accused's intention toward Danmore rather than the deceased, noting this was exactly the approach that was criticized and abandoned in S v Ncube. The court observed that it did not benefit from any address on the accused's intention in relation to the deceased and the proper test to be applied.

This case reaffirms and applies the important principle established in S v Ncube regarding aberratio ictus (deflected blow) situations in Zimbabwean criminal law. It demonstrates the rejection of the transferred malice doctrine and confirms that an accused cannot be convicted of murder of an unintended victim without having the requisite dolus (intent) toward that specific victim. The case also clarifies that constructive intent is no longer part of Zimbabwean law following the enactment of the Criminal Law (Codification and Reform) Act, and confirms that section 15(4) of the Code superseded the common law test for constructive or legal intention. It serves as an important reminder to prosecutors and legal practitioners about these developments in criminal law.