Online Reporter
Trust Maanda
Legal Position
CULPABLE homicide is the unlawful killing of a human being caused by negligent conduct. It is not murder because there is no intent to kill, but there is blameworthy negligence.
It is governed by common law, and has been codified in practice through the Criminal Law (Codification and Reform) Act [Chapter 9:23] and judicial decisions.
Culpable homicide is defined at common law as the unlawful negligent killing of a human being.
To prove culpable homicide, the State must prove four elements beyond reasonable doubt:
a) Unlawful killing
The death must be caused by the act or omission of the accused.
b) Of a human being
The victim must have been a human being and alive. Killing an animal is not culpable homicide.
c) Caused by the accused
There must be a causal link. It must be said “but for” the accused’s conduct, the death would not have occurred. Both factual and legal causation are required.
d) By negligence
Negligence is not intention. This is the key element that separates it from murder. Negligence means the accused failed to take the care that a reasonable person would have taken in the circumstances.
The test is objective: Would a reasonable person in the position of the accused have foreseen the possibility of death and taken steps to avoid it?
If yes, and the accused did not, then the conduct is negligent. There is no need to prove intention to kill or injure. Intention is for murder.
With murder, there is an intention to kill, or foresight of possibility of death and reckless persistence with the conduct that gives rise to the death. With negligence, there is no intent. No foresight required.
If the State cannot prove intention, it often falls back to culpable homicide as an competent verdict.
Most culpable homicide cases are in road accidents where a person drives a vehicle at excessive speed, lose control and kill a pedestrian.
Culpable homicide requires negligence judged by the reasonable person test. Driving recklessly and failing to keep proper lookout is sufficient for a person to be held guilty of culpable homicide.
Negligence in driving motor vehicles resulting in death is the most common form of culpable homicide.
Another example of culpable homicide is of medical negligence. A nurse who administers the wrong injection to a patient who dies commits culpable homicide.
A reasonable nurse will check the prescription and dosage. Failure to do so is gross negligence.
Professional negligence can find culpable homicide if it falls far below the standard of a reasonable professional. Another culpable homicide case arises from a fight. If you strike a person and he or she dies, no intention to kill may be proved. But a reasonable person would foresee that striking someone could cause them to fall and be injured. Conviction of culpable homicide will be made. Even a single blow resulting in culpable homicide where intent to kill is absent gives rise to a conviction for negligent killing, which is culpable homicide.
If you own a firearm and leave it lying around and accessible and a child picks it up and shoots another child dead, you will be guilty of culpable homicide.
You would have been negligent. A reasonable person would foresee that leaving a gun accessible could lead to death. Culpable homicide can arise from an omission — failing to act when there is a duty to act. A medical doctor who fails to attend to a patient in labour, resulting in the death of the baby, commits culpable homicide. Duty of care exists. A breach of that duty by omission causing death is culpable homicide. Professionals therefore have a heightened duty of care. Culpable homicide fills the gap between murder and accident in Zimbabwean law.
The State does not need to prove a guilty mind, only a guilty failure to take care.
The question is: What would a reasonable person have done? If the accused’s conduct fell grossly below that standard and death resulted, culpable homicide is made out. This ensures that people who kill through carelessness are held accountable, even without intent to kill.
You are expected to act reasonably at all times.
Culpable homicide includes where you are expected to act and you omit to do so and where you act but negligently. If this results in death, you are liable for culpable homicide.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646 or [email protected].
