The accused persons in this case are charged with three separate counts of murder, assault, and arson. These three counts arise from events which took place in 2000 at Nehanda Resettlement Village, Madziwa.

All five accused pleaded not guilty to the charges against them when trial commenced in December 2006.

At the resumption of the trial, in July 2007, the court was advised that the first accused (Yomence Chaitezvi) had died on 4 of January 2007. This was later confirmed by an affidavit deposed to by his brother.

The trial duly proceeded on the same charges as against the remaining four accused who were now represented by different counsel....,.

State Evidence

At the beginning of its case, the State produced, by consent, the post-mortem report of Dr. Mutamba, dated 8 May 2000 [exhibit 1].

In essence, the report shows that the deceased, Peter Karidza, died as a result of a head injury from the assault perpetrated upon him on the fatal day.

At a later stage, the evidence of Vincent Kambanga, and that of Dr. Mutamba, as contained in the State Summary of Evidence, was also admitted by consent.

Vennas Chimangemange is the deceased's widow.

She testified, that, on the night of 23 April 2000, a group of people gathered outside her homestead chanting political songs. They then began to throw stones at the main house and eventually torched the main house as well as the surrounding structures. At the same time, they called out for the deceased.

When she and the deceased went outside they were attacked by some of the men in the group.

At that point, the first accused (Yomence Chaitezvi) tried to verbally restrain the assailants and took the witness away to the back of the house. Therefore, she could not say whether any of the other accused were present or involved in assaulting the deceased.

When she returned to the front of the house, after about 30 to 45 minutes, she found that the deceased had been severely beaten. The main four-roomed house and five other structures had been destroyed by stones and fire. All the domestic furniture, utensils, and equipment was also destroyed.

The deceased passed away at about 5:00am on the following morning.

Molline Chimangemange is the deceased's daughter.

Her testimony was similar to that of her mother as regards the general picture of what transpired on the night in question. However, her evidence was that she actually saw the first accused (Yomence Chaitezvi) and the second accused (Notice Kida) each strike the deceased once before the others in the group joined the attack.

She was able to see what happened and positively identify the assailants because of the burning huts.

She did not see the third accused (Obert Muchemwa) or the fourth accused (Zvidzayi Marufu) at the scene of the attack. However, she did see the fifth accused (Jacob Kagogoda) running around encouraging the assault, but did not witness him actually assaulting the deceased or causing any fires.

The witness was present throughout the duration of the attack.

The group consisted of about 100 men and about 40 of them took part in the assault.

The deceased eventually lay on the ground after being assaulted for about 30 minutes. The first accused (Yomence Chaitezvi) then told the others to stop.

Savory Hodza was, at the relevant time, the Chizinga District Chairman of the ZANU-PF youth wing. All five accused were office-bearers in the political party in various branches which fell under Hodza's command.

He testified, that, on the night in question, he met and drank beer with the deceased at Muzivi Growth Point. He heard that the second accused (Notice Kida) had planned a meeting at which the deceased was to be summoned. He warned the deceased who then ran away.

On his way home, he passed by Nehanda Village and saw a group of about 50 people, including the second accused (Notice Kida), who had gathered for a “pungwe” about 300 metres from the deceased's homestead. Further along the road he encountered two more groups, of about 50 and 20 people respectively, who were also going to the 'pungwe'. The first group included the first accused (Yomence Chaitezvi) and the second group included the fourth accused (Zvidzayi Marufu).

When Savory Hodza arrived home, about 2 to 3 kilometres away, he saw fires burning over Nehanda Village. Although he was fairly drunk, he walked towards the village. About 300 metres away from the deceased's homestead he observed that all the groups had dispersed.

The witness was arrested as a suspect on the following morning but was later released after recording his statement to the police.

According to Savory Hodza, the second accused (Notice Kida), third accused (Obert Muchemwa) and fourth accused (Zvidzayi Marufu) wanted his position in the party and therefore resented him. They had arranged the gathering in question without his authority and knowledge.

Under cross-examination, he admitted that he had been convicted for public violence and sentenced to 30 months imprisonment in respect of another offence involving political violence in the same area.

Detective Sergeant Nemaisa is a member of the Zimbabwe Republic Police. He was based in Bindura in April 2000.

On 25 April 2000, he was tasked to record warned and cautioned statements from four suspects, namely, the first accused (Yomence Chaitezvi), second accused (Notice Kida), third accused (Obert Muchemwa) and Savory Hodza.

He met the three accused for the first time at that stage.

They corroborated Savory Hodza's statement that he was not present at the scene of the attack and that he knew nothing about it. Each of the three accused was then allowed to write his own statement in three separate rooms. At that time, each accused was unguarded and not handcuffed. Detective Sergeant Nemaisa then confirmed their statements in Shona and translated them into English. Thereafter, the statements were given to the accused to read before they were signed and witnessed.

In their statements, the three accused admitted the charge of having murdered the deceased.

After Detective Sergeant Nemaisa's evidence-in-chief, the warned and cautioned statements of the first (Yomence Chaitezvi), second (Notice Kida) and third accused (Obert Muchemwa) (exhibits 2, 3 and 4) were admitted by consent, subject to challenge under cross-examination.

When cross-examined, Detective Sergeant Nemaisa confirmed that the three accused had understood and signed their respective statements freely and voluntarily and without any duress whatsoever. Moreover, he did not see any visible signs of the accused having been assaulted, nor did they complain of having been assaulted by other police officers.

Inspector Absai Muchemedzi testified that he was involved in attending the scene of the attack on the morning after. He found the body of the deceased covered in bruises and observed that some of the structures at the homestead had been burnt or otherwise damaged. Certain suspects were arrested later that day but he could not recall any of them other than the first accused (Yomence Chaitezvi).

The warned and cautioned statements of the fourth (Zvidzayi Marufu) and fifth (Jacob Kagogoda) accused were compiled and signed over nine (9) months later, in the presence of different police officers who were not called to testify.

These statements were therefore not adduced or admitted in evidence....,.

The third accused (Obert Muchemwa) was a senior official of ZANU-PF in the Chizinga District.

His testimony was that from 21 and 24 April 2000 he was attending his father-in-law's memorial service at Batsinarayi Village, about 12 kilometres away from Nehanda Village. He only returned to Nehanda Village on the morning of 24 April, together with his wife and child. He was not aware of Savory Hodza's plan to visit the deceased at his homestead. He was arrested by the police because he was the ZANU-PF political leader in Nehanda Village.

He and Notice Kida were taken to the scene of the attack where he was assaulted for arguing with the police.

The deceased's wife identified Savory Hodza and Yomence Chaitezvi as the perpetrators of the assault upon the deceased. They were both arrested but Hodza was given preferential treatment and was not detained.

Under cross-examination, he accepted that he was not assaulted at the police station and that his arrested colleagues did not complain to him of having been assaulted. Again, he was not assaulted at the time that he signed his warned and cautioned statement, but he denied having read his statement before signing it. As this was the first time that he had been arrested he did not appreciate the significance of signing the statement.

When questioned by the Court, he stated that he had attained 8 “O” Levels in 1990 and a Certificate in Tobacco Culture in 1996 or 1997....,.

The fourth accused (Zvidzayi Marufu) was an official in the Chitepo Branch of ZANU-PF.

According to him, it was Savory Hodza who directed him to mobilise the members from Chitepo Village. When they arrived at Nehanda Village, he met Yomence Chaitezvi, Notice Kida and Savory Hodza, together with 120 to 150 party members, gathered on a hill approximately 300 to 400 metres away from the deceased's homestead.

He deduced that Savory Hodza was drunk and that his plan to confront the deceased as an MDC sympathiser would probably entail violence.

Zvidzayi Marufu then told the Chitepo members to return to their village and returned home himself soon thereafter. He was surprised the following morning when he heard about the attack on the deceased and his homestead. He was arrested about nine months later.

He signed his warned and cautioned statement after being threatened and slapped by the police....,.

The fifth accused (Jacob Kagogoda) was also an official in the Chitepo Branch of ZANU-PF.

He testified, that, at the time of the attack on the deceased, he was in bed suffering from malaria. He was under medication and unable to walk. He was arrested much later, in January 2001.

After his warned and cautioned statement was recorded he was assaulted by three police officers. He then signed the statement without having read it....,.

Warned and Cautioned Statements

Having regard to the testimony of Detective Sergeant Nemaisa, the Court is satisfied that the warned and cautioned statements of the second (Notice Kida) and third (Obert Muchemwa) accused were properly recorded and that they were duly sworn and signed by them.

Notwithstanding their protestations to the contrary, it is clear that the two accused had understood and signed their respective statements freely and voluntarily and without any duress.

They are accordingly admitted as reliable evidence.

On the other hand, the warned and cautioned statements of the fourth (Zvidzayi Marufu) and fifth (Jacob Kagogoda) accused were not adduced or admitted in evidence and must therefore be disregarded for present purposes.

The accused's own confirmed warned and cautioned statement which was produced..., by consent, confirms that detail. He said:

"I took a dagger and returned where the now deceased was. I asked the now deceased why he had assaulted me."

In this case, the State is seeking the impeachment of its main witness, one Michael Peter Hitschman, in terms of section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the grounds that the witness has materially departed from his previous statements.

The section provides that:

"316 Impeachment and support of witness credibility

It shall be competent for any party in criminal proceedings to impeach or support the credibility of any witness called against or on behalf of that party in any manner and by any evidence in and by which, if the proceedings were before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by such party, and in no other manner and by no other evidence whatever:

Provided, that, any such party who has called a witness who has given evidence in any such proceedings, whether that witness is or is not, in the opinion of the judge or judicial officer presiding at such proceedings, adverse to the party calling him, may, after the said party or the said judge or judicial officer has asked the witness whether he has or has not previously made a statement with which his testimony in the said proceedings is inconsistent and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been mentioned to the witness, prove that he previously made a statement with which his said testimony is inconsistent."

It is trite and a matter of elementary law, that, a party calling a witness may not contradict, discredit, or challenge its own witness's evidence unless that witness has been declared a hostile or adverse witness by the court. If, however, any authority is required for that proposition of law, one need not look further than the case of S v Mazhambe & Ors 1997 (2) ZLR 587.

JW HORN, in his article, Discrediting One's Own Witness, published in the Rhodesia and Nyasaland Law Journal 1961…, defines an adverse witness in the following terms:

"An adverse witness is one who shows himself to have a mind hostile to the party calling him, or to the interests of such party. Such hostility may be inferred from one or more of the following: his demeanour in the witness stand, his relationship with either party, his previous conduct, or the fact that he has made a previous statement inconsistent with his evidence."

Having said that, the learned author proceeds to say, that, once a witness has been declared adverse, the party calling the witness is free to cross-examine him.

Where the witness gives evidence which is inconsistent with a statement made by him previously, the party calling him may prove such statement.

The nature of the previous statement takes many forms. The learned author states that:

“5. Such a statement may be oral, or written, and need not have been made to the party calling the witness, or for the object of being used in the proceedings in which the witness is testifying.

6. The witness should be given sufficient particulars of the alleged statement to designate the occasion upon which it was made.

7. The witness should then be asked whether he admits to having made a statement on the occasion specified. If the statement is signed, he may be asked to admit or deny his signature.

8. The previous statement must be shown to be inconsistent with the testimony of the witness by the party desiring to produce it. Any statement, or part of any statement, which would be inadmissible if led as evidence cannot be relied upon to show such inconsistence.”

The facts giving rise to these impeachment proceedings, are, to a large extent, common cause.

The brief undisputed facts are, that, on 6 March 2006, the witness was found in possession of a large quantity of firearms, ammunition, and arms of war. He was then arrested and detained, together with the recovered weapons and ammunition, at Adams Barracks, by a group of State agents comprising the police, army, and CIO personnel. He was later transferred to police custody on charges of insurgency, terrorism, sabotage, and unlawful possession of firearms.

While under detention, the witness made certain written statements and indications.

On 7 March 2006, he made a hand written statement at Adams Barracks, and, on 11 March 2006, he made a typewritten affidavit at CID offices.

The witness also made indications which were captured on video tape at Adams Barracks.

In all those statements and indications, he confessed and admitted having committed the offence in collusion with others - including the accused. He implicated the accused, alleging that he was responsible for financing the whole criminal enterprise to violently effect regime change through force of arms.

The witness admitted, in open court, that, he made the said statements and indications to State authorities. He however placed the admissibility of the statements and indications in issue saying that they were involuntarily extracted from him through torture under unfriendly and hostile circumstances.

It is common cause, that, when the witness made the said statements and indications he had not been properly warned and cautioned.

The handwritten statement was not signed or witnessed by anyone.

The witness told the court, that, his tormentors were drunk and disorderly, such that, in their drunken state, they omitted to make him sign the statement. Having noted the omission, he then deliberately refrained from signing it, signifying his lack of free volition.

The witness was subsequently charged with substantially the same charges as the accused. He appeared before CHITAKUNYE J whose verdict reads as follows;

"From the above, this court is of the view, that, the accused cannot be found guilty of the main charge. He (is) found not guilty and acquitted on the main charge. He is, instead, found guilty of the possession of dangerous weapons in contravention of section 13(1) of POSA."

He was then sentenced to four years imprisonment of which one year was suspended on appropriate conditions. He has since completed serving the prison term although he has an appeal pending in the Supreme Court.

Upon being served with a subpoena to give evidence as a State witness in these proceedings, the witness responded by delivering to the Attorney General an affidavit in November 2009. In paragraph 12 of that affidavit, he absolves the accused of any wrongdoing or complicity in the commission of any related charges. In paragraph 12 he had this to say:

"Consequently, therefore, and as the police are fully aware, there is no relevant testimony I can give in respect of the charges now being brought against Mr Leslie Roy Bennett who was not involved in my firearms business or in any dealings I had with firearms. In any event, I do not believe that I have been validly subpoened, and, unless advised to the contrary, I do not intend to appear in court on 9 November 2009."

Despite his protests, the witness attended to give evidence as a State witness at the accused's trial.

It is also common cause, that, the Attorney General called the witness to give evidence with the full knowledge that he was likely to give evidence adverse to the State case.

Not surprisingly, when he appeared in court, the witness gave evidence which is unfavourable to the State case and heavily leans in favour of the accused.

It is on that basis, that, the State put in motion these impeachment procedures.

I now turn to consider the admissibility of the previous inconsistent statements upon which the State relies in its bid to impeach its own witness.

It is not in dispute that both statements and indications were made at the instance of State authorities.

It is a legal requirement, that, the police must properly warn and caution an accused person before asking him to make a statement for production in court.

It is also common cause, that, the witness was not properly warned and cautioned according to law before making the statements.

That being the case, the statements were obviously inadmissible against the witness; this explains why they were not used at his own trial.

It follows, as a matter of common sense, that, if the statements and indications were inadmissible against the witness, they were equally inadmissible against his alleged accomplice, that is to say the accused.

Having examined the statements and indications in question, I have no doubt, that, they are not ordinary witness statements. They are, in fact, confessions made by the witness, not in his capacity as a witness, but, as an accused person pending his own prosecution.

Section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

"259 Confession not admissible against other persons

No confession made by any person shall be admissible as evidence against any other person."

The section is couched in simple, clear language such that it needs no further elucidation. It constitutes a prohibition thereby making its provisions peremptory and absolute.

I accordingly hold, that, the statements and indications in question, if tendered as evidence, will be inadmissible against the accused.

Looked at from another angle, judicial precedence both at home and abroad established that executive statements made in furtherance of the commission of a crime are admissible against the conspirators, or partners, in crime.

In the case of The State v Mathew Governor and Anor HH09-07 I had occasion to quote with approval the wise words of GUBBAY CJ in the case of State v Sibanda 1992 (2) ZLR 438..., when I remarked that -

“It is true that generally an extra curial statement is admissible only against its maker but the rule is subject to two exceptions. The two exceptions were amply articulated by GUBBAY CJ at page 441 when the learned Chief Justice observed that:

'It is only in two exceptional situations that an extra curial statement may be admitted, not only as evidence against its maker, but also as evidence against a co-accused implicated thereby. The first is whereby the co-accused, by his words, accepts the truth of the statements so as to make all or part of it a statement of his own.

The second exception, in the case of conspiracy, statements of one or two conspirators' made in the execution or furtherance of a common desire are admissible in evidence against any other party in the conspiracy. See R v Miller and Anor 1939 AD 106 at page 115; R v Mayet 1967 (1) SA 492 at 495.'” (my emphasis)

In R v Miller and Anor 1939 AD 106 WATERMEYER JA had this to say -

“There is a well recognized rule that the acts and declarations of one conspirator are admissible in evidence against another provided that they are acts performed  and declarations made in furtherance of the common purpose.”

In this case, we have been told by the State that the emails in question contain no ordinary narrative statements but executive instructions concerning the modalities of committing the crime charged. That being the case, the e-mails snugly fit into the second exception referred to by GUBBAY CJ in State v Sibanda 1992 (2) ZLR 438 thereby rendering the emails admissible at law.

In conclusion, I am constrained to say that the purpose of a criminal trial is to determine the correct factual position without sweeping anything under the carpet or reducing the trial to a game of wits.

Having regard to the legal position I have articulated..., it is plain that the emails in question are relevant and vital to the just determination of this case.

Maxmore Mukubvu, Wlliam Mukubvu, and Tawanda Magora left Muromba Village in Chief Nyajina's area in the Uzumba Maramba Pfungwe district of Mashonaland East Province, in the company of the deceased, in the early hours of 29 October 2005 to hunt for wildlife in the Mupfurudzi Game Park. They were armed with spears and axes, and had a pack of twelve dogs. In the game park, they first killed a hare before they cornered a klipspringer which ran up a nearby rock. Maxmore Mukubvu went up the rock while his fellow-hunters advanced from the right-hand side of the rock towards their query. He saw the accused person grab hold of the deceased by his belt and assault him with the butt of his rifle before he ran away from the scene. As he was running away he heard the sound of three gunshots fired in rapid succession. When he was a kilometre away he heard another round of three gunshots.

Under cross-examination, he averred that the accused first fired three warning shots into the air before he grabbed hold of the deceased. He saw all his colleagues take to their heels at the sound of the gun. As he scampered down the rock he saw the accused grab hold of the deceased and belabor him with the butt of his rifle. He changed his version and averred that the accused held the deceased with his left hand by his belt, and used the right hand to fire three shots into the air while supporting the rifle with his right thigh. Thereafter, he hit the deceased with the butt of the rifle twice on his buttocks.

The statement he gave to the police on 16 September 2006 was produced as Exhibit 2. He told the police that his two friends who testified with him were on one side of the rock while the deceased was on the other side of the rock. He also stated, in the statement, that the accused set upon the deceased and hit him on his back, above the waist, with the butt of the rifle which he held in both hands. He also told the police that after running for a kilometre he heard a gunshot.

William Mukubvu testified that as they were surrounding the klipspringer the accused suddenly appeared and set upon the deceased whom he hit once on the back, just above the waist, with the rifle butt as he shouted the words “poachers” twice. The witness and Tawanda Magora ran away leaving Maxmore Mukubvu on top of the rock. The deceased never ran away from the scene, where he was apprehended by the accused. As he was running away he heard the sound of three gunshots which were followed- ten minutes later-by another three shots.  

Under cross-examination, he stated that the accused was four metres from the witness when he fired the rifle in his direction. He conceded that he did not wish to shoot him as he would not have missed him at such a short distance.

His version in court was different from the one he gave to the police on 16 September 2006 in Exhibit 3 as regards the number of shots he heard. In his statement, he averred that he heard two shots fired in rapid succession, and, after he had run for a distance of 500 metres, he heard another shot.  

During the course of investigations, Michael Peter Hitschmann made statements and indications to the security authorities.

1. Michael Peter Hitschmann's Warned and Cautioned Statements and Indications

During the course of the trial I ruled the statements and indications to be inadmissible against the accused in judgment HH46-10. I find myself constrained to repeat what I said in that judgment to the effect that -

“While under detention, the witness made certain written statements and indications. On 7 March 2006, he made a handwritten statement at Adams Barracks, and on 11 March 2006 he made a typewritten affidavit at CID offices. The witness also made indications which were captured on videotape at Adams Barracks. In all those statements and indications he confessed, and admitted having committed the offence in collusion with others – including the accused. He implicated the accused alleging that he was responsible for financing the whole criminal enterprise to violently effect regime change through force of arms.

The witness admitted, in open court, that he made the said statements and indications to the State authorities. He, however, placed the admissibility of the statements and indications in issue saying that they were involuntarily extracted from him through torture under unfriendly and hostile circumstances.

It is common cause that when the witness made the said statements and indications he had not been properly warned and cautioned. The handwritten statement was not signed or witnessed by anyone. The witness told the court that his tormentors were drunk and disorderly such that, in their drunken state, they omitted to make him sign the statement. Having noted the omission, he then deliberately refrained from signing it; signifying his lack of free volition.

I now turn to consider the admissibility of the previous inconsistent statements upon which the State relies in its bid to impeach its own witness. It is not in dispute that both statements and indications were made at the instance of State authorities. It is a legal requirement that the police must properly warn and caution an accused person before asking him to make a statement for production in court. It is also common cause that the witness was not properly warned and cautioned according to law before making the statements.

That being the case, the statements were obviously inadmissible against the witness; this explains why they were not used at his own trial. It follows, as a matter of common sense, that if the statements and indications were inadmissible against the witness they were equally inadmissible against his alleged accomplice; that is to say the accused.

Having examined the statements and indications in question, I have no doubt that they are not ordinary witness statements. They are, in fact, confessions made by the witness, not in his capacity as a witness but as an accused person pending his own prosecution. Section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that -

“259 Confessions not admissible against other persons

No confession made by any person shall be admissible as evidence against any other person.”

A trial within a trial was held to determine the admissibility of certain statements that were attributable to the first accused person. The result of that exercise was a finding that there was a reasonable possibility that his statement was not made freely and voluntarily.

It was not admitted into evidence.

The law on the admissibility of extra-curial statements is clear. In terms of section 256(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] the statement must have been made freely and voluntarily without any undue influence. The meaning of “freely and voluntarily without undue influence” was dealt with in detail by DUMBUTSHENA JP…, in S v Slatter & Others 1983 (2) ZLR 144 (HC). He used such phrases as “improper external impulses brought to bear on the confessors will; psychologically coercive pressures and inducements and physical pressures.” At 168D-173H he outlined the allegations made by each accused in that case which he believed constituted undue influence. In S v Wood & Ors 1993 (2) ZLR 258 (S)…, GUBBAY CJ used the phrase “external factors” in defining undue influence.

Case law reveals that there are certain overt and covert factors that investigators employ that negative the admissibility of statements made by suspects or accused persons. In the present case, the overt factors that the first accused alleged were employed were the use of the bridge machine, leg irons and handcuffs; assaults using the baton stick, an empty coca cola bottle and booted feet. The covert features were the threats of further assaults and further detention at the police station; and the antagonistic interrogation and recording environment.

The allegations of assault and ill treatment were confirmed by the scar on the accused's upper left eye. The two police witnesses used words such as “interrogation and demanded answers” that portray that the accused was not fully co-operative as stated by Detective Assistant Inspector Nekati or fairly cooperative as averred by Joseph Jengeta. A co-operative suspect would not require three days of heavy interrogation by a team of five detectives. The attempt by the Investigating Officer to distance himself from the interrogation of the accused betrayed his knowledge of the assaults. The accused gave detailed evidence of the stretcher machine method of torture which had the ring of truth.

The test of admissibility was set out by DUMBUTSHENA CJ in S v Dhliwayo & Anor 1985 (2) ZLR 101 (S)…, thus:

“In my judgment the overriding consideration in assessing the totality of the evidence on admissibility is whether, in the circumstances prevailing during the period the appellants were detained in police custody under conditions they have described, there are no elements of inducement which rendered the making of the statements not free and not voluntary. In examining this factor the court must scrutinize the totality of the evidence with great care.”

In the present matter, such an examination reveals that the environment existing during the period the accused was detained at the police station and in the recording detail's office, when the statement was recorded, was intimidatory and not conducive to the making of a free and voluntary statement. Whether the statement is true is not the point. McNALLY JA warned in S v Donga & Anor 1993 (2) ZLR 291 (S)…, that -

“The trial within a trial is about the admissibility of the statement and not about its truth. It may well be perfectly true, but if it was obtained by improper means the law says it is not admissible in evidence.”

Detective Assistant Inspector Nekati located the first accused in Mutare Central Prison and booked him out on 20 August 2007. He warned and cautioned him on 22 August 2007 and recorded a warned and cautioned statement from him. The statement was not confirmed on the face of it as required by the law. There was a departmental document that was used by the confirming magistrate in the confirmation process that was written “confirmed” and was signed and dated. Counsel for the State conceded that the statement had not been confirmed in accordance with the law and practice. She sought a postponement to call the magistrate who had presided over the proceedings. On 30 March 2010 she indicated from the bar that she was unable to call him as he had left service and was working in Namibia. She elected to go into a trial within a trial.

Joseph Nekati and Joseph Jengeta testified in regards to the recording of the warned and cautioned statement. The recording detail, Nekati, recorded the statement from accused one on 22 August 2007 in his office at Mutare Central police station. He alleged that he did not witness the accused being assaulted by a baton stick or an empty coca cola bottle. He did not witness the handcuffed accused on a stretcher machine suspended on a pole placed between his legs. He denied that the accused was assaulted and had no knowledge concerning how he sustained the injury on his left eye for which the mark was still visible even as he testified. He distanced himself from the allegation that the first accused was assaulted by a posse of five to six detectives by averring that he was involved in the collation of documents and not in the interrogation of the accused. Under cross examination, he stated that when he booked the first accused out of Mutare Prison he was in good physical health and did not have any injuries on him. He had the accuracy of the interpretation certified by a court interpreter before he took the first accused to court on the following day for the confirmation of the statement. He alleged that the statement was confirmed on 23 August 2007. He failed to explain how the same statement showed that the court interpreter certified its accuracy on 25 August 2007. He admitted that on the departmental document used by the magistrate in the confirmation proceedings the date stamp of 28 August 2007 was superimposed on that of 23 August 2007. Although he was in charge of documentation he could not explain the anomalies in the date stamps. He said when he booked out the accused; although he did not decline to answer any question he was uncooperative. His interrogation by five police detectives started on 21 August 2007. The idea was to establish the role he played and the benefits that he derived from the criminal enterprise. He was apprised of the results of the interrogation. He alleged that over the two days of the interrogation the accused became very cooperative. He saw no anomaly in the use of a team of five detectives to interrogate a very cooperative suspect for two days. He averred that the team would put questions and “demand answers.” He did not observe the swollen face and cut on the eye for which the accused was treated at Mutare Remand Prison. The witness read the allegations to the accused and interpreted the preamble into Shona. Joseph Jengeta, who was heavily involved in the interrogation, witnessed the statement even though he could draw from a wide pool of officers who were not involved in the investigations. He indicated that the statement was recorded while the accused sat on the floor and Joseph Jengeta stood next to the witness who was seated on a chair. He was horrified by the suggestion that counsel expected him to supply a murder suspect with a chair to sit on in order to treat him as an equal. He denied that the accused was assaulted by a baton stick which caused the injury on his left eye. He also denied that he was assaulted by an empty coca cola bottle. He was not familiar with an interrogation technique called the bridge or the stretcher machine. He denied that the suspect was assaulted while handcuffed and suspended from a pole placed between his legs. He denied that the accused was forced to sign the statement. He was adamant that the statement emanated from the accused. It took 15 to 20 minutes to record the statement. He denied that the statement was ascribed to the first accused because he was a friend of a suspect called Sam Masaiti.

Simon Muruju gave evidence on how the statement was recorded.

He said he was taken from prison for two consecutive periods of five days. He would be taken on a Monday and returned on a Friday. He narrated the ordeal he underwent on each of the ten days that he was in police custody. On the first Monday he told the police what a friend and neighbour Sam Masaiti had told him about the robbery and murder. He led them to Sam Masaiti's residence but he had flown away. He had gone with Sam Masaiti to Mozambique. In Mozambique Sam Masaiti told him where the computers he was carrying had come from. The police were not pleased with his story. They commenced to hit him so that he would confess to the murder. He was tortured using a technique called the bridge or stretcher machine. The detectives ordered him to squat. A pole was placed behind his knees. He was lifted and each end of the pole was held by a detective against a table. He was suspended with his head facing the floor. Nekati, Jengeta, Tashaya, Biri and Nyakuwanika took turns to assault him with a baton stick and an empty coca cola bottle on his soles, knees and elbows. On the following day Tashaya hit him with a baton stick on the head above the left eye. The scar was still visible above his left eye. He was bandaged on his return to prison on the first Friday. When he was rebooked the following week he was again tortured on the bridge on Monday. The following day he was taken for indications. The photographs that were taken would reveal that he was bandaged. On the Wednesday he was forced to sign the statement. After the assault he was taken to Nekati's office and forced to sign the statement in issue. When he signed it he was in pain, sick and swollen. Under cross examination he averred that the records at Mutare Prison would show the exact dates that he was taken from prison. He alleged that he was taken to Nekati's office during the second period. Nekati, who sat in a chair, shoved the statement at him and ordered him to sign it. Jengeta stood by in the office. He was then returned to the police cells. He spent two nights in police cells before he was taken to court. The police detectives Nyakuwanikwa and Tashaya, who accompanied, did not leave the courtroom when the court was cleared for the confirmation of the statement. He simply agreed to the contents of the statement because the detectives who took him to court threatened to take him back to the police station if he disowned the statement. He was treated at Mutare Prison dispensary after the confirmation.

Counsel for the State conceded that the unequal power play exhibited in the recording detail's office between the accused and the two police officers was not conducive to the recording of a free and voluntary statement. The accused was ordered to make a statement while he sat on the floor. In that position, and in handcuffs, he was ordered to sign the statement in issue. Common courtesy dictated that he be provided with a bench or chair to sit on. No reason was proffered on why he gave a statement and signed the statement while he was handcuffed other than that he was a murder suspect. Both police officers indicated that he was not a security risk. The statement was adduced in the presence of and witnessed by a detective who had taken part in the heavy and unrelenting interrogation of the accused with four other detectives for three days.

Joseph Nekati agreed that some photographs of the first accused were taken during subsequent indications. He averred that they were not processed because the ZRP failed to purchase the chemicals required to develop the negatives. He denied that the photographs would reveal a heavily bandaged accused person with a cut above his eye.

Joseph Jengeta , a Loss Control Officer with the Wattle Company of Zimbabwe was a Detective Sergeant at the time of the murder; with ten years' service in the police force. He was present when the first accused was called upon by Detective Assistant Inspector Nekati to make a statement. He made it in Shona and it was reduced to writing. Later it was translated into English. The witness read it back to the accused who appended his signature and subsequently the recording detail and the witness followed suit. He was part of the interrogation team that questioned the accused person for three days before he was invited to make a statement. He denied that the statement was written by the police from information they had received before they interrogated him. It took thirty minutes to record the statement. He denied that the statement was ascribed to him because he was a friend of a suspect called Sam Masaiti.

He was cross examined.

He acted as the liaison between the interrogating team and the Investigating Officer. He participated in questioning the first accused whom he found fairly cooperative. The accused was reticent in answering certain questions but volunteered answers in others. He volunteered information after appreciating the depth of the information the interrogating team had in its possession. He distinguished between interviewing and interrogating by averring that the former depicted cooperation and the latter force. He denied assaulting the first accused in any way. He denied that when photographs were taken the cut above his left eye was bandaged.  He confirmed Detective Assistant Inspector Nekati's testimony on their respective positions in Detective Assistant Inspector Nekati's office during the recording of the statement. He disputed that the accused was at an unfair advantage during the recording of the statement as he was handcuffed and seated on the floor notwithstanding that he was not a flight or security risk and a chair could easily be procured for him.

Prior to the applicant's arrest, investigators had arrested his colleague, who is now jointly charged with him, Bongani Sicelo Mbambo at a house in Malbereign, Harare. It is Bongani Sicelo Mbambo who led the police to where the accused was. After the applicant and Bongani Sicelo Mbambo were arrested, they were interrogated by the police and they directed them to Sloane Lodge in Harare where the other two co-accused namely Everton Khupe and Mandlenkosi Gumisayi had been booked after their arrival from South Africa where they were based.

Counsel for the applicant has strongly argued that the confession and/or indications made by the applicant were obtained through torture.

Counsel for the applicant has strongly argued that the confession and/or indications made by the applicant were obtained through torture. He relied on a medical report, dated 21 May 2010, submitted to his firm by Dr. A. M. Dube, the Regional Prison Medical Officer who examined the applicant on the 20^th May 2010. The doctor observed some injuries on the applicant and that he was having difficulties in walking and he concluded that it was “a case of severe soft tissue injury due to assault.”

Prima facie, therefore, the applicant may have been assaulted.

The accused alleges that police officers beat, him on the soles of his feet and on the back with wooden planks. He alleged that they also denied him food as they were forcing him to confess that he had participated in the deceased's murder. He initially refused to make the confession.

The torture and starvation continued for three days without an end in sight, leading to his making the statement in the confirmed warned and cautioned statement.

He was thereafter taken to the scene of the murder where he was tied to a tree trunk and assaulted with sticks for him to confess that he had crushed his son's head with a stone. He was later locked up and taken to court on 28 June 2007 together with the other three suspects who had, by then, been arrested by the police.

The accused therefore denies causing Ronald's death, nor in any way, participating in causing it…..,.

Exhibit 5, the accused's confirmed warned and cautioned statement, was produced by the State in terms of section 256(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. It was, however, challenged by the accused who alleged that he was tortured and starved by the police who were forcing him to admit the offence in the manner narrated in that statement….,.

Detective Cst Elias Katsvere testified for the State.

He told the court that they, on 18 June 2007, received a report of a dead body having been seen in the paddock of Sandara Farm. He proceeded to Sandara Farm in the company of other police officers. They were led to the scene by Japhet Mauzeni who had discovered the deceased's body. He observed that the deceased's body was partially undressed with his short trousers lowered to knee level. He noticed a stone with a patch of human hair near the deceased's body. He noticed that the deceased's ear was missing. They put the deceased's body in a police coffin and took the stone. They conducted other investigations and proceeded to Magunje Police Station where they met the accused leaving Magunje police and going to Karoi. They arrested the accused and took him and the deceased's body to Karoi Police Station where the accused was put in police cells.

The next day they took the accused to Karoi CID offices where they interviewed him in an office used by 22 officers. Officers were coming in and going out during the recording of the statement. They interviewed him at the southern corner of that office. He said the accused made the statement freely and voluntarily without being unduly influenced thereto. He said the accused person was not assaulted by the police during the interviews and the recording of the warned and cautioned statement. Detective Sgt Nhari recorded the statement and he witnessed its recording. He does not recall when the statement was recorded.

On the recording of the accused's warned and cautioned statement he said Detective Sgt Nhari recorded the accused's statement after they had interviewed the accused for four hours. They had interviewed him and stopped to await instructions from their seniors. There were four officers in the investigating team. They all took turns to interview the accused person. They interviewed him in the big office and in the Officer-In-Charge Crime's office. Other officers who use the big office would come to where the accused was being interviewed - but only after they had finished interviewing him. He said the warned and cautioned statement was not recorded on the same day because Everson Major, Takaedza Masunda and Samuel Mazheke, whom the accused person had mentioned as his accomplices, had to be picked. They subsequently arrested the accomplices. When asked where the accomplices are he said Samuel Mazheke had died, Takaedza Masunda is in Karoi, and Everson Major in Magunje. He does not know why the accomplices were not prosecuted. The accused's statement was recorded on 20 June 2007. He denied the accused's allegation that he was assaulted in the Officer-In-Charge Crime's office. He said the accused was co-operating and they were writing what he was saying. When asked whether the accused had had breakfast when they took him for interviewing, he, at first, said he did not know but later changed and said his relatives were bringing him food.

Under re-examination, he said they did not continuously interrogate him for four hours but had left him alone when the accused called him and said he now wanted to tell the truth.

His evidence on the recording of the accused's confirmed warned and cautioned statement is embellished by the contradictions between him and Detective Sgt Nhari on the following:

1. That the accused was interviewed in the big office and the Officer-In-Charge Crime's office when Detective Sgt Nhari said he was only interviewed in the big office.

2. He also said other officers were coming in and going out during the interview while Detective Sgt Nhari, at first, said they were not. He also said other officers not involved in the investigation would come and ask the accused questions.

3. On whether or not the accused was being given food during the time he recorded the confirmed warned and cautioned statement, he said he does not recall, but thereafter, said his relatives were bringing him food.

It seems he was tailoring his evidence to give credit to the recording process.

4. His evidence also differed with Detective Sgt Nhari's on how the statement was recorded. He said the accused gave his statement while they recorded what he was saying. Detective Sgt Nhari said the accused wrote his own statement on a piece of paper.

Detective Cst Elias Katsvere's evidence agrees with the accused's who says the police recorded the statement. Again, Detective Cst Elias Katsvere's evidence seems more truthful on this aspect than Detective Sgt Nhari's.

The recording of the statement in an office where several other officers could come in and ask the accused questions takes credibility from the recording process. The possibility of the accused being denied food also takes credit from the recording process. These tend to support the accused's allegations against the recording of his confirmed warned and cautioned statement. The contradiction between the recording officer's evidence, on whether the accused wrote his own statement or the police recorded what he said, leaves one officer supporting the accused while the other is being contradicted by his own colleague's evidence. This takes credence from the statement which was accepted in evidence by consent as exhibit 5.

It destroys the statement's evidential value….,.

On the recording of the statement, the accused conceded that it was recorded on 20 June 2007 - after he had been arrested on 18 June 2007. He said his alleged accomplices were arrested four days after the date of his arrest. He had merely described them to the police as he did not know their names. He said he does not know how the police could have given him their names for inclusion in his statement. He further said when he went to court for the confirmation of the statement the police had threatened to take him back and assault him if he did not co-operate. He later said he had previously been taken to court and had told the court that he was denying the charge and was taken back to CID offices.

The Court was shown a video tape of the indications made by the accused.

Detective Sergeant Trust Tarusenga's testimony was that he attended the scene at the Moza River where the deceased's body had been buried in a shallow grave on the river bed. He examined the body and noticed the following:- two deep cuts on the head, one on top of the head the other on the back of the head, the third deep cut was above the right eye; the 4^th deep cut was between the shoulders.

The witness recovered a pair of khakhi trousers from the accused's home. They were found in the accused's bedroom in a washing basket. They were blood stained and were produced as exhibit 8.

The accused made indications which led to the recovery of the axe head and broken handle from the same anthill hole where the right foot gum boot had been recovered by the search party the day before. The axe and handle had been thrown deeper into the hole that is why the search party had not seen it when it retrieved the gumboot. The accused went to indicate another hole where he had hidden the left gum boot about 800 metres from the hole on the ant hill. He finally led the police to Manzamnyama River where the green track suit that the deceased had been wearing had been buried on the Manzamnyama River bed. That point was 1.6 km from the hole where the left gumboot was recovered and 2km from the anthill hole where the right gum boot and axe handle were retrieved.

The witness told the court that Sikwamula Filias Moyo was not present when the accused was making all those indications to the police. The witness said the accused made the indications freely and voluntarily.

The State produced, by consent of defence counsel, the accused's warned and cautioned statement recorded at Zvishavane on 22^nd June, 2012. The statement was duly confirmed by a magistrate. The statement was marked exhibit 3 and reads as follows:

The next exhibit 3 was produced with the consent of both the State and defence counsel. This is the accused's confirmed warned and cautioned statement dated 21^st day March 2010. 

It is not entirely clear why the statement was recorded almost 3 months after the murder. 

The contents of the accused's warned and cautioned statement are these:

The State…, tendered into evidence, by consent of defence counsel, the accused's warned and cautioned statement (exhibit 3). It is necessary to repeat the contents of the accused's confirmed warned and cautioned statement which are as follows:

“I have understood that caution and admit to my charge. What happened is that I went to my son's field to cut down the shrubs. I was with my son. The field in question had a long standing dispute between me and the family of the person I later killed. I went to the field with a spear while my son armed himself with an axe and a catapult as we anticipated that we could be fought. The deceased and her family later came and told us to stop clearing the land. My son started pelting stones from his catapult. The deceased's sons drew nearer me as I was holding my spear. The deceased was shouting from my behind ordering his sons to fight me, she suddenly went to my front in a bid to refrain her children and this is the moment I threw the spear intending to stab Solomon Matsanza and the spear stabbed the deceased. I pulled out the spear from the deceased and ran to my homestead where I left the spear and proceeded to Sengwa Police Base on my own…,.”…,.

We note that the accused did not challenge the warned and cautioned statement at the confirmation proceedings.

In the case cited by the State, S v Alexander Dzomoroda HH03-06 CHATUKUTA J stated…, as follows:

“The fact that the warned and cautioned statement was confirmed before a magistrate shifts the onus onto the accused to prove that the warned and cautioned statement was not made by him, and was not made freely and voluntarily. The accused did not discharge the onus.”

In casu, the accused failed to discharge the onus. We also observe here that some of the facts mentioned in the accused's Defence Outline appear in his warned and cautioned statement. As correctly pointed out by the State counsel, such inside information contained in the accused's warned and cautioned statement could not have been “smuggled” by the police into the warned and cautioned statement.

The confirmed extra curial statements made by the accused were produced as exhibit 11, 12, 13 and 14 respectively.

In his statement, the first accused placed himself at the scene but denied assaulting the deceased.  Instead, he alleged that he had assaulted a woman inside the shop by hitting her with a tin of baked beans and with an open hand. It was his story that he had entered the shop with the second and third accused intending to rob the shop. He went on to state that he and Accused 3 had firearms and the third accused was the one who fired a shot at the scene. He confirmed that Thandekile Nkomo had gone with them. When asked who had assaulted the deceased he said he did not know but he believed it could have either have been Accused 2 or Accused 3 since they were the ones who entered the shop with him.

His story changed when he outlined his case. He alleged that he was nowhere near the scene when the crime was committed as he was at his rural home in Tsholotsho on 24 January 2009.

He averred that on 18 February 2009 he was mugged by some unknown people who viciously assaulted him until he was unconscious. He only gained consciousness when he was in the hands of the police. He therefore could not remember the circumstances under which he was arrested.

The police took him for indications at Pelandaba Shopping Centre where they told members of the public that he had been responsible for the robbery that took place at Tashas Supermarket. He went on to allege that he had been tortured by members of the police, namely, Zhou, Mbano and MaNcube resulting in him implicating all his co-accused persons. Detective Zhou went further and threatened him with death. That caused him to sign statements - without even reading them.

In his confirmed extra curial statement, the second accused denied the allegations that were preferred against him. He, however, placed himself at the scene of the crime. He stated in his statement that he had proceeded to Pelandaba Shopping Centre with his three co-accused to steal. On arrival, they left the first and third accused at the shops. He himself went to wait for them in the car. After a short time they returned to the car.

In answer to the questions asked by the recording officer he said Thandekile Nkomo was with them on the day in question when they went to Pelandaba Shopping Centre and went on to tell the police that the first and third accused were the ones who had firearms.

His story changed in the outline of his defence case wherein he alleged that on 24 January 2009 he was not in Zimbabwe but was in South Africa. He only came to Zimbabwe on 17 February 2009 with the first accused. On the way, he asked the accused to drive because he himself was feeling tired. When the first accused was driving he hit a wild animal causing minor damage to the car. On arrival in Bulawayo they left the car with the 4^th accused in Njube. He then proceeded to his home in Gwabalanda where he phone his mechanic, who is the 3^rd accused, and arranged with him to meet in Njube the next day. The next day was 18 February 2009, as he was still asleep the police arrived with Accused 1 and 3.  The 3^rd accused had been shot. He was then taken to Bulawayo Central Police Station where he was assaulted until he was unconscious. Thereafter, he was initially charged with armed robbery but two weeks later a charge of murder was added. He allegedly was forced to admit the charges. He claimed to have been implicated by the first accused. He finally stated that he would challenge the admissibility of the confirmed extra curial statements in the circumstances.

The third accused raised an alibi from the onset. He denied killing the deceased in his confirmed extra curial statement because on 24 January 2009 he was in South Arica.

In answer to the questions by the police he said he only started knowing Thandekile Nkomo in February 2009 from her house through Accused One was she was his girlfriend. He denied ever seeing her in January 2009 as he did not even know her by then. He went on to deny knowing the fourth accused.

He said the first accused came to Bulawayo during the month of January 2009 but denied giving him his firearm. He said the first accused had his own firearm. Although he admitted coming to Bulawayo once during the month of January 2009 he denied ever going anywhere with Thandekile Nkomo during that month as he had not known her yet. He maintained his defence of an alibi in the outline of his case alleging that he was in South Africa on the day the offence was committed and only left that country on 10 February 2009 and arrived in Bulawayo on 11 February 2009. On 17 February 2009, Accused 2 phoned him requesting him to go and attend to his car which needed some repair following an accident he had. The 3^rd accused said he was a panel beater by profession. The following day, which was 18 February 2009, he proceeded to number C42 Njube, where the second accused stayed. On arrival, he noticed that the house looked deserted but the main door and gate were wide open. He entered the house only to find two men who turned out to be police in plain clothes standing inside the house armed with AK47 rifles. He retreated but the two men caught hold of him. One of them went behind him and shot him five times on the left leg and once on his left shoulder. He fell down and was then put in a pick-up truck and taken to Bulawayo Central Police Station where he was severely assaulted. He was also allegedly assaulted at CID Homicide offices in CABS Building. Thereafter he was hospitalized in Khami Prison Hospital but was later transferred to United Bulawayo Hospitals. It was only after about 3 to 4 months that he was informed that he would be charged with the crimes of murder and armed robbery when a Remand Court was convened at United Bulawayo Hospitals to remand him while he was in his hospital bed.

He alleged that he had been forced to admit the charges and would deny them. He would also contest the admissibility of his confirmed extra curial statement on the basis that it had been extracted from him after he was allegedly severely tortured and threatened with death.

He denied knowing the first and fourth accused and also denied ever owning a gun and was never in possession of one as alleged.

It should be noted that despite the alleged severe assaults and torture the accused flatly denied any involvement in the commission of the crime.

The fourth accused, in his confirmed extra curial statement placed himself and all his three co-accused at the scene. He, however, sought to minimize the role he played. His story was that on the day in question he had left his home in the company of his three co-accused and Sithandekile Nkomo going to Pelandaba. They travelled in the second accused's car driven by the second accused. On arrival at the shopping centre he alighted from the car and went to buy a packet of 500ml Chimombe milk and returned to the car. He sat in the car watching television. Accused 1 and 3 went into the shop but came out of the shop after a while being pursued by members of the public. Accused 3 – Mehluli- fired into the air. The second accused then allegedly instructed him to start the car. The first and third accused entered the car and he drove away heading in the direction of Entumbane. He did not see anyone being assaulted. He only heard about the death of the deceased when he was in Khami Prison after his arrest.

In his Defence Outline, he stated that he would contest his confirmed extra curial statement on the basis that it was not made freely and voluntarily as he was allegedly severely assaulted prior to making it.

He said he had just arrived from South Africa in January 2009 and was delivering goods to locals in Bulawayo. He went to the first accused's home to make a delivery to him. The two then decided to go out together for a braai. They agreed to pick up accused's girlfriend, Sithandekile Nkomo, and the second accused on their way. On the way, they fortuitously met the third accused whom he had never met before. The third accused agreed to join them for an outing. They then drove towards Western Commonage and went to Tashas Supermarket in Pelandaba. On arrival, Accused 1, 2 and 3 left the car to get drinks and he remained in the car with his girlfriend watching DVDs. In a short while, the third accused returned and informed them that there was a long queue and he preferred to also wait in the car for the other friends. As they waited, Accused 1 and 2 came out of the supermarket with a group of noisy people as if there had been a fight. He never understood why there had been noise in the supermarket. He was also allegedly unaware of the intended robbery. Had he known he would not have invited his girlfriend for an outing as that would have been dangerous for her. He further alleged that when two of his co-accused emerged from the shop with a noisy group of people the third accused, who was the owner of the car in which they were, instructed him to drive off fearing that they might be caught up in cross-fire. He said he never disembarked from the car let alone entering Tashas Supermarket at any point. He was never involved in any fight at the supermarket. He had never met the deceased in his lifetime.

The accused has confused Accused 3 with Accused 2. The correct position, according to the evidence, is that the car they used belonged to Accused Two. It was Accused Two who returned to the car after seeing his relative at the shop.

It will be noted that all the accused's warned and cautioned statements were only tendered as exhibits in these proceedings after the court had conducted a trial within a trial to determine the admissibility or otherwise of such statements….,.

The court a quo and the trial prosecutor were alive throughout the proceedings to the need to follow the procedural requirements regarding extra-curial statements and indications which were attributed to the applicant. 

Indeed, I am inclined to find favour in the respondent's findings that pages 71, 76-77 and 79 of the record of proceedings indicate consciousness to procedure on the part of the court a quo.

The recovery of the firearms itself in the applicant's field and house respectively was not challenged by both the applicant and his co-accused. It was thus properly admitted into evidence as an exhibit. In this regard, section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] is instructive. It reads:-

“…,. It shall be lawful to admit evidence that anything under trial or that any fact consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him on such trial.”

See also S v Nkomo 1989 3 ZLR 117…,.

The second issue raised by the Attorney General in his notice relates to the failure by the trial court to hold a trial within a trial in order to properly admit the appellants' extra statements and indications made at the scene. 

It is alleged that sometime between 27 July and 3 August 2011, the applicant and seven (7) accomplices kidnapped and killed the now deceased, Mgoli Ndlovu Majola. It is alleged that after the murder they removed his tongue, brain, nose, lips and four fingers. It is alleged that the applicant took the now deceased's tongue.

The application for bail is opposed on two grounds, that is:

 (i) Likelihood of abscondment; and

(ii) Likelihood of interference with investigations.

The respondent filed an affidavit deposed to by the Investigating Officer, O. Mudyazvavanhu, of the Criminal Investigations Department, Homicide Squad, Bulawayo. What can be gleaned from the evidence therein is that the applicant was linked to the offence by one Nkosilathi Khumalo; that is Accused 2 in the case.

According to the Investigating Officer, Nkosilathi Khumalo was implicated by his own sister Cecilia Khumalo. After his arrest, Nkosilathi Khumalo indicated that he organised the murder with his aunt, Pisi Nxumalo; that is Accused 1 in the matter. He said that he and Pisi Nxumalo then hired the other six accomplices, including the applicant, to carry out the murder. Xolani Ncube's vehicle was used in the kidnapping of the now deceased from his house. He was taken to a bushy area in Richmond. After the murder, it is alleged that Nkosilathi Khumalo and other accomplices took the tongue to the applicant.

The inference is that the applicant was not at scene where the murder occurred but was aware of it because she “had requested for the parts.” There is no other evidence linking the applicant to the offence of murder other than the statement of the accomplice Nkosilathi Khumalo. It has been brought to my attention by counsel for the applicant that when these ex-curial statements implicating the applicant were taken to the Magistrates Court for confirmation the makers disowned them resulting in them not being confirmed. In a nutshell, the State is relying on these unconfirmed ex-curial statements in linking the applicant with the murder.

This is evinced by the contents of the Request For Remand Form 242 which describes how the applicant's accomplices are alleged to have participated in the murder. There are also allegations that they contacted an Inyanga to assist in the murder. They are also alleged to have made “positive indications at the scene.” All these allegations do not state participation of the applicant save for the implication by Nkosilathi Khumalo. There is also a discrepancy on what was taken to the applicant. In the Form 242, the accomplices took the tongue, fingers and brain to the applicant and yet the Investigating Officer in the sworn statement alludes to the tongue only.

The applicant is a Councillor for Ward 9 of the Bulawayo City Council. She is an elderly woman aged 57. She owns the immovable property that she lives in. She is a mother of four (4) children. The parts allegedly given to her were not found in her possession. As alluded to above, the alleged accomplice who implicated her has disowned the statement before a magistrate resulting in the ex-curial statement not being confirmed. The court should always lean in favour of granting bail provided that the interests of justice are not prejudiced – S v Biti 2002 (1) ZLR 115 (H); Attorney General v Kanoda HH200-90; S v Hussey 1991 (2) ZLR 19 (S); and Aitken and Another v Attorney General 1992 (1) ZLR 255 (S). Although the charge here is serious, looking at all the other relevant factors outlined above, the seriousness of the offence is not likely to induce the applicant to abscond. The applicant is a suitable candidate for bail. The fears raised by the respondent can be addressed by the imposition of stringent conditions.

Accordingly it is ordered that:

(1) The applicant be and is hereby admitted to bail in the sum of US$300=.

(2) The applicant is to reside at Number 3755 Magwegwe North, Bulawayo until the finalisation of the matter.

(3) The applicant shall not interfere with investigations or State witnesses in this matter.

(4) The applicant shall report thrice a week on Mondays, Wednesdays and Fridays between the hours of 6am and 6pm at Magwegwe Police Station until the matter is finalised.

Detective Assistant Inspector George Zuze also recorded warned and cautioned statements from the two accused persons which he says were made freely and voluntarily without any undue influence being brought to bear upon them. 

On that score, his evidence is partially corroborated by the admitted evidence of Detective Assistant Inspector Nyoni….,.

In addition to the foregoing evidence, the two accused persons' confirmed warned and cautioned statements were produced as exhibits 4 and 5 respectively.

In his statement, Accused 1 stated as follows:

“I am Vusumuzi Moyo, 29-233834 F24, and Khulekani Dumisani Nkomo and Brilliant – I admit because we boarded a motor vehicle at Food 4 Less; a Toyota Sprinter, silver in colour, registration number 801-918Z heading for Magwegwe. We got to robots that are near the cemetery, Khulekani strangled him and removed him from the driver's seat and I then took up the driver (sic). I started driving that car and the(n) Khulekani said we should head for Luveve cemetery where on arrival he and Brilliant assisted each other and got out with the owner of the motor vehicle. I had misgivings when I saw them dragging him, I asked what the matter was and he said he will pick up strength that is why when we left there I still had misgivings about it. I took the motor vehicle and kept it at a car park. We left and boarded an emergency taxi and went away. We parted there. The car park is in New Luveve opposite Masina beer garden.”

Accused 2's statement is shorter. It reads as follows:

“Khulekani Dumisani Nkomo I do agree that I was in the company of Vusumuzi Moyo and Ashi. We got transport at Food 4 Less and proceeded to go and rob someone of his vehicle. Vusumuzi bound him (with) a string/cord and we departed. We left the person in some bush I cannot identify. Thereafter, we transported two youngmen. One of them disembarked at Njube and we left the other at Ngozi Mine after robbing him of his phone.”

Clearly, therefore, in their warned and cautioned statements, which were confirmed by a magistrate in terms of section 113 of the Criminal Procedure and Evidence Act, in proceedings held in camera, the two accused persons confessed to the crime 

The State's case largely rested on the alleged confession made by the accused in the form of a warned and cautioned statement as well as indications.

The admissibility of theses statements was challenged by the defence.  

This resulted in a trial within a trial in which the court ruled against the admissibility of the extra-curial statements….,.

I may also remark, in passing, that the inconsistent statement, of Phineas Zinatsa, does not appear to have been recorded properly.

In his long extra-curial statement, the accused said this:-

“I do not admit the charge. I did not kill my son. I loved him a lot. We had a family gathering on that day. On that day, I was with my son who I hadn't seen for some time. The reason being that he was staying with his mother. It was a day where we gather and have a beer drink and some food. During this period, I did give my son some alcohol but it was only a few sips. That was only after he suggested for some by his gestures. There was quite a number of people there. Later that evening, my son was now irritable and wanted to sleep so both my wife and I took him to the bedroom to sleep.  In the same room there were other children that were sleeping. I remember my wife coming and telling me she wanted to leave to her uncle's place where she was spending the night so she asked me to take the child for her. I told her to go and get him seeing I was still enjoying myself with the other men. We were actually braaing some meat. She came back several times worrying me to take her half way with the child. When we got to the room she entered first and when she touched the child she started screaming which led the other family members coming in. They tried to resuscitate him but to no avail which led us to rushing him to Mpilo Hospital where we were told he had passed away.”

The story that the now deceased picked a piece of firewood or that he was drunk is not part of the accused's warned and cautioned statement.

If that was the case, the accused would not have omitted such crucial aspects when events were still fresh in her mind.

The State Outline was read and produced as exhibit one while the Defence Outline, which was also read, was produced as exhibit two. I do not intend to reproduce these two exhibits again. I shall, however, read the accused's confirmed extra curial statement which he made two days after the crime was committed. It reads thus:

“When I arrived at home I got a message from my wife, Thembelani Ncube, that the now deceased, Evidence Thabani Ncube, had said that I should visit his home. I took a knife from the kitchen and went to the now deceased's place.

I knocked at his bedroom, he refused to open. I went to my cousin's bedroom and woke them up. I asked Langelihle Ncube to wake my aunt Dorcas Ncube. I and Dorcas Ncube went to Thembani Ncube's bedroom but I knocked and my aunt Dorcas Ncube called out and he opened the door.

We went inside. I talked to him rebuking him telling him to stop proposing love to my wife Thembelani Ncube. My aunt rebuked me and I went outside. The now deceased, Thembani Ncube, remained inside, insulting me. I went back and told him to come outside.

The warned and cautioned statement made by the appellant was confirmed before a magistrate at Lupane. 

This is common cause.

In terms of the law, therefore, the statement was admissible on its mere production by the prosecutor. The appellant, however, was permitted to lead evidence and show, on a balance of probabilities, that notwithstanding that it had been confirmed, it had been induced by assault and was therefore not admissible.

I pause here to comment that the procedure adopted by the court a quo to conduct a trial within a trial was wrong as such a process is mandatory where the State seeks to rely on a statement that has not been confirmed. It is clear that, instead of a trial within a trial, the court a quo should have merely conducted an inquiry into the allegations made by the appellant. Such inquiry would have entailed allowing the appellant to give evidence on the alleged torture and the State leading evidence from the police in rebuttal. 

In effect, this is what happened.

Both the prosecution and the defence led evidence on the allegation that the statement had been induced by assaults. At the end of that process, the court came to the opinion that the allegation was not true and therefore that the statement had not been induced by assaults or threats of further assaults.

In my view, whilst the adoption of the trial-within-a-trial procedure was not correct, an inquiry was nevertheless conducted during which both parties led evidence. The confirming magistrate was called and he specifically stated that the appellant had no complaints against the police or the manner in which the statement had been taken. He complained of assaults at the hands of the commuter omnibus crew and passengers at the time he was arrested.

The warned and cautioned statement was confirmed by a magistrate in proceedings in which the applicant indicated that he had made the statement freely and voluntarily without any undue influence having been brought to bear on him….,.

The applicant alleges that the High Court ought to have found that his warned and cautioned statement was not made freely and voluntarily.

A close analysis of the evidence shows that the applicant's case was that the contents of the warned and cautioned statement were not his. The allegation was that the statement was a dictation by the police which he was made to write down. He said the statement was worded with the view of securing sympathy from the court so that he would be convicted of culpable homicide. The question was therefore not whether the warned and cautioned statement was made freely and voluntarily, which is a question of law. The question was whether the contents of the statement originated from the applicant or from the police involved in the investigation of the case. That was a question of fact.

The High Court correctly found, as a fact, that the statement was made by the applicant.

The applicant revealed detailed information on the circumstances surrounding the death of the deceased which could only have been known by a person who was with the deceased at the time she died. There would have been no reason for the applicant talking about thinking of disposing of the body by putting it in the wardrobe or placing it under the bed if he was not involved in killing of the deceased.

The applicant went further to reveal that he went to Machipisa BP Service Station. In the warned and cautioned statement he narrated the sequence of events that was corroborated by Ketty Ndebele. The evidence of Ketty placed him at the service station between 1a.m. and 2a.m. on 12 May 2005.

In light of the evidence, it is clear that the argument by the applicant that the High Court ought to have found the allegation in the Defence Outline that he was at the service station on an unspecified day before 10 May 2005 constituted an alibi is baseless. What he said did not amount to an alibi. An alibi is a statement of defence to the effect that a person accused of a crime was at a specific place different from the crime scene at the time the crime was being committed. The applicant did not say where he was at the time the murder of the deceased was committed, which would have been between 1950hours on 11 May and 2am on 12 May 2005.

When the applicant made indications at the service station on 19 May 2005, where he said he met Ketty Ndebele, he did so as confirmation of the admission of the fact that he had taken the monarch bag containing the deceased's body there. Ketty Ndebele said she only met the applicant on two occasions, on 12 May when he brought the monarch bag and 19 May when he came with the police for indications.

The applicant did not challenge the forensic evidence which linked him to the blood stains on the towel, tissue paper and the cushion. That evidence clearly showed that he was likely than not to have been the killer.

The applicant has sought to challenge the reliability of the post-mortem examination results because of the error in the report to the effect that it was sworn to before the commissioner of oath on 6 March 2005. The doctor gave evidence to the effect that he carried out the post mortem examination on 20 May 2005 and that the date recorded as the date of deposition to the affidavit was a typographical error.

The document itself shows that the post mortem examination was carried out on 20 May 2005.

The evidence adduced proved that the crime of murder was committed. It established beyond reasonable doubt that the applicant was the perpetrator of the crime. There are no prospects of success in the application for extension of time within which to seek leave to appeal against conviction. The application for bail pending application for extension of time within which to appeal is without merit. 

Whilst the confessions made by the accused persons were not confirmed and whilst what they said in those confessions cannot be admitted as evidence in this court, their indications are nonetheless admissible.

Sergeant Steyn Munovapei, the Investigating Officer, was assigned the matter at 10am on 13 October 2008. Constable Advance Sakonda, from the Marirangwe police base, brought the accused and Aleck Mlambo to him. He had a 50cm long black baton stick. He warned and cautioned the two suspects in the presence of Constable Chipfurutse and recorded their respective warned and cautioned statements in the crime investigations office. He further warned and cautioned the two suspects and proceeded with Constable Advance Sakonda to the scene of crime for indications. The accused identified a spot inside and another outside the workshop where the assault on the deceased took place. The deceased lay on the floor in the workshop covered by a blanket. He uncovered the blanket and pulled the shirt of the deceased up. The body was swollen. He observed weals on the back, buttocks, biceps and triceps of both arms.

The accused and Aleck Mlambo were taken to the Beatrice Circuit Court the following day by a constable and the witness followed. He was seated in court when the accused's matter was called. The confirmation proceedings were held in camera and in the absence of the Investigating Officer. After the proceedings, the accused was taken into prison custody and conveyed to remand prison. He only became aware that he was legally represented during his indictment for trial at Chitungwiza Magistrates' Court. He identified exhibit 1 as the confirmed warned and cautioned statement he recorded from the accused person. He recorded it first in long hand on 13 October 2008 before typing it out the following day. The accused responded thus:

“I do admit that on the 12^th day of October 2008, at about 2200 hours, during the night, I assaulted the now deceased with a baton stick several times which led to his death on 13^th day of October 2008 at 0400 hours in the morning. The reason why I assaulted the now deceased was to recover the irrigation pipes he had stolen from the fields. I ordered the now deceased to lie down on his stomach and assaulted him several times on his buttocks using a baton stick. Whilst assaulting the now deceased, he complained that he was not feeling well and I stopped assaulting him. I took him to a nearby fireplace to warm him since he was complaining of fever. The now deceased sat beside the fireplace for a long time before sleeping awaiting dawn. The now deceased slept near the fire and I also slept at the opposite side of the fireplace. At around 0400 hours, on 13^th day of October 2008, I woke up and discovered that Nyamitumba Saopa had died. That is all.”

Signed by accused. Recorded by the witness, Sergeant Munovapei, and witnessed by Constable Chipfurutse. Signed and dated 14 October 2008.

He was crossed examined.

He went for indications in the vehicle that had conveyed the accused and constable Advance Sakonda to the police station. He scrutinised the whole body and observed “scars” (weals) left by the weapon. He did not see any herpes marks; he, in fact, was not aware what such marks look like. He did not observe any fresh and weeping wounds on the abdomen and back of the deceased.

He disputed the averment that he never took the accused for indications but let him sit out Aleck Mlambo's indications in the workshop. He took the accused for indications first. The accused indicated the place in and outside the workshop where the accused hit the deceased and the fireplace he died warming himself and where the accused, Aleck Mlambo and Isaac Gunya carried the body to where it lay in the workshop. He confessed he hit him all over the body in order to extract a confession and location of the stolen pipes. He denied that a mob wanted to hit the accused at the farm. The pipes stolen by Owen Masocha were recovered. Those allegedly stolen by the deceased were not recovered. It was alleged the two had stolen the pipes from two different sites on the farm. He took Aleck Mlambo for indications soon after the accused. Aleck Mlambo confessed he started hitting the deceased under his feet with a baton stick outside the workshop. He, in turn, took Isaac Gunya and Tonderai Kazembera for indications. He was not aware that the accused was assaulted by plain clothes policemen at 2am. He never used force or threats of any kind on the accused to induce him to sign his statement. He read back to him the computer typed statement. The accused was most cooperative from the time he was handed to him, recorded statements and referred him to court. He was not aware of the events at Marirangwe [that arrested as Head of Security for report death at hands of Aleck Mlambo], but, at Beatrice, the accused admitted to assaulting the deceased. He was taken to court, with other suspects, by three policemen. The witness followed at court to provide clarifications to the public prosecutor before commencement of proceedings and not to intimidate the accused. After all, the accused was co-operative and admitted to assaulting the deceased. Tonderai Kazembera was never a suspect as he was exonerated by Owen Masocha.

He was adamant that other than the court orderly no other policemen remained in court during confirmation proceedings. He was unaware that the accused was detained at Beatrice police holding cells for three days awaiting transport to remand prison….,.

In her oral submissions before us, counsel for the accused asked us to disregard the witness' evidence on the basis that the warned and cautioned that he recorded was induced by force by other policemen other than the Investigating Officer.

We do not share her views.

The statement was recorded in long hand on the day the accused and Aleck Mlambo were brought to the police station - before they had spent the night there. Any alleged happenings during the dark, after it had been recorded, would not have any bearing on what had already been said. The contents of the statement of the accused, and, indeed, of Aleck Mlambo, as put to the accused under cross-examination, demonstrate minimal admission of wrong-doing in comparison to the overall injuries inflicted on the deceased. The accused limited admission to assaults on the buttocks and intimated acts of kindness and compassion towards the deceased when he complained of fever and ill-health while Aleck Mlambo minimised the assaults he inflicted to four under the feet of the deceased.

If the police were the author of the confirmed warned and cautioned statement we would expect to see full admission of the assaults on all the parts of the body observed by the Investigating Officer and confirmed in the post-mortem report.

We are satisfied that the accused gave his statement freely and voluntarily. The manner of confirmation of the statement was only impugned in meaningful detail during the evidence in chief of the accused. Had that been clearly set out in the Defence Outline we would have called the confirming magistrate to testify on the procedure he adopted in confirming the warned and cautioned statement.

We are satisfied that the Investigating Officer conducted himself in a professional manner in his interactions with the accused…..,.

While the accused stated that he was under a barrage of blows from plain clothes policemen when the investigating officer was recording his warned and cautioned statement, these allegations were never canvassed with the investigating officer by his counsel during cross-examination….,.

We found the accused an incredible witness who went to great lengths to resile from his confirmed warned and cautioned statement.

He falsely claimed protracted police brutality from Marirangwe police base to Beatrice police station. Yet he did not complain of such assaults to the confirming magistrate or even to his own counsel the following day. One would have expected his counsel to have made arrangements for medical examination of the accused at the time to crystallize any injuries he may have sustained from such assaults. In our view, the accused is given to hyperbole and was completely untruthful on the manner in which his confirmed warned and cautioned statement was recorded….,.

We are satisfied that the State proved, beyond a reasonable doubt, that the accused participated in the indiscriminate assault of the deceased all over his body. He was the head of security at the farm. He did not stop his juniors from assaulting the deceased. Rather, he was at the forefront of inflicting the injuries observed by the Investigating Officer and confirmed and recorded in the post mortem report by the forensic pathologist in exhibit 2. The conclusions of the pathologist on the cause of death are consistent with the proven facts of the injuries found on the deceased's body. See Levy v Tune-O-Mizer Centre (Pvt) Ltd 1993 (2) ZLR 378 (S)…, where KORSAH JA stated that -

“However, before receiving such expert opinion in evidence, the facts which he relies to form that opinion must themselves be proved in the trial by admissible evidence.”

His participation is not only based on his confession that he made freely and voluntarily but also on the credible evidence of a percipient witness, Tonderai Kazembera. In addition, it is a proven fact that the deceased was assaulted, even by the accused's own evidence, by, among other weapons, a baton stick, which he handed over to Constable Sakonda. The contents of the post-mortem report is evidence aliunde that the deceased died from the vicious assault on his person. Unlike in S v Shonhiwa 1987 (1) ZLR 215 (SC)…, where the cornerstone of the State case was the confirmed warned and cautioned statement, the evidence of Tonderai Kazembera and the postmortem report confirm the extent of the accused's participation in the assault that caused death.

In S v Taputsa 1966 RLR 662 (A)…, LEWIS JA said that:

“The effect of s 301(2) seems to be that, where there is evidence aliunde proving that the offence has actually been committed, the court may satisfy itself of the genuineness of the confession by the accused that he committed it or took part in it from the nature of the confession itself; where, however, there is no evidence aliunde proving that the offence itself has been committed, the court must, in addition, go outside the confession and be satisfied that it is confirmed by other evidence. In the leading case of R v Blythe 1940 AD 354, TINDALL JA, delivering the judgment of the Full Bench of the Appellate Division, laid down that the confirming evidence required by the statute must be such as to corroborate the confession 'in a material respect', although it need not directly implicate the accused in the offence, and that the statutory requirement, in this regard, was similar to that in respect of an accomplice, as explained by SOLOMON ACJ in R v Lakatula 1919 AD 362. In Lakatula's case, it was said that there should be corroboration in some material respect 'in order that the jury may be satisfied that the accomplice is a reliable witness upon whose evidence they may safely act.'

(See also R v Troskie 1920 AD 466 at 468, per INNES CJ).

Applying this test to confessions, it seems that the confirming evidence need not amount to evidence directly confirming that part of the confession in which the accused actually implicates himself in the commission of the offence; it need only be evidence which is sufficiently corroborative of a material part or parts of the confession to satisfy the court that it can safely rely on the confession as a whole in convicting the accused."

In our view, both the intrinsic test arising from the contents and nature of the confession itself and the extrinsic test emanating from external evidence were satisfied. The genuineness of the confession is intrinsically demonstrated by the attempt to minimize the area the accused directed his blows and his purported acts of kindness and compassion and extrinsically by the other evidence already referred to of Tonderai Kazembera and the post mortem report.

The accused challenged his extra-curial statement.

He mentioned the names of Sergeants Makudza, Gomwe, Mukono and Meke as taking part in the assaults on his person.

The State called eighteen of the 25 witnesses it had listed as its possible witnesses. The formal documentary evidence consisting the post mortem-report and ballistic evidence was produced without contest. The court admitted into evidence the video recorded indications made by the accused. The recordings show that the accused was properly warned and cautioned regarding whether he wished to make indications.

He elected to make indications.

He asked the officers to go to Chipadze. At Chipadze, the accused showed the police officers where Pedzisayi Zhoya stood holding a gun. He said he had no gun. He showed police where he stood on the side opposite his accomplice who then approached the two guards one of whom held a .303 rifle. His task, he said, was to watch out for the police as his accomplice went to disarm the guards before they could carry out the plan to rob the premises under guard. After his accomplice approached one guard he heard bursts of gunshots. The accused showed the police the different directions taken by the fleeing guards. The accused then told the police, at the time, that Pedzisai Zhoya, who had the .38 stolen from one Mr Dollar, then came to him saying he had failed to disarm the guards. They should go to Chiwaridzo. He then told the police to proceed to Chiwaridzo Shopping Centre. He told them by then there were 7 to 8 rounds left in the .38 special revolver. He had a toy gun. Upon arrival, he indicated the bottle store which they had robbed. He indicated where Pedzisai was at the pool table with the green satchel in which the pistol was carried. He closed the door behind him. He told the police that Pedzisayi then instructed him to order people to surrender. He gave him 3 live rounds to show the patrons that this was no joke. He told the police that after he closed the door he then ordered the patrons to put their hands up and to lie down. At that time, he showed them the bullets demanding cash. He demonstrated, in the video, how he did this. He indicated how he proceeded behind the counter. As the cash box was unlocked it opened and spilled its contents. In the video he demonstrates how he knelt down to pick the cash which he had then placed in his pocket. At that stage he told the police that Pedzisayi Zhoya came and threw the satchel at him ordering him to put everything inside it. He heard two shots fired by Pedzisai. He told the police, during the recorded indictations, that he took spirits and a calculator. They then went away in different directions as the patrons scattered around in fear. He told the police that they later met and shared the loot. He indicated the place where he hid the cash box, at House No.1513.

They proceeded to Chipadze where Pedzisai went to buy some pain killing tablets for him after he was injured during the robbery. He asked the police team to go to House No.517 Chipadze. At this house they found his wife present. He tied his head with a towel. He indicated how they shared the money amongst the three of them, including Joram Frank. He confirmed that he sutured his wound.

Pedzisai Zhoya also elected to make indications.

He asked the police team to drive to Chipadze. Upon arrival at a shop that he indicated he went on to give the following indications and explanations. He indicated the places where each stood respectively. They saw two guards; one was armed with a rifle. The present accused, Jonathan Mutsinze, had a gun. Jonathan Mutsinze showed the guards a live round. The guards then ran away in the direction he indicated. They did not manage to rob. He asked the police team to proceed to Chiwaridzo where he said they had then gone. They had arrived there around 8pm. At Chiwaridzo Bottle Store, Pedzisayi told the officers that when they got under the shop Jonathan Mutsinze carried the satchel with stripes. They stood near the pool table. The gun was in the satchel. He then left Jonathan under as he went out of the Bottle Store holding a beer bottle. He then shouted;

“Take care of your life."

Immediately the gun went off. Doors opened and people ran out. Jonathan came out of the shop carrying the cash box with money. They left the scene and proceeded to 1513 Chipadze. Inside, they chased the children outside the lounge. Jonathan removed all his clothes to show that he did not remain with any money before they shared it amongst the three of them. Jonathan called for a needle and thread to suture his forehead injury; which injury he had sustained during the robbery at Chiwaridzo.

Accused Pedzisayi said he and Frank got $450= and Jonathan Mutsinze got $500= as he said he was the main actor. Joram Frank had assisted by carrying the firearms from Craiggieburn Farm. He indicated the sofa inside the room where he slept whilst Jonathan Mutsinze and his wife used the floor. They left Bindura the following morning for Matapatepa. He took the gun.

He indicated that he was happy with the manner the indications were carried out.

The videos recorded indications were supplemented by written indications, the transcript of which appears at page 56 top 60 of the new record. The transcript follows clearly the video recorded indications.

It was not, however, signed by the accused….,.

Besides the description given by Takesure Furawu, the court was satisfied that the detailed indications he gave could only have been given by Lessmore Kange with the considered knowledge of the events of the night. Without relying on statements made by the accused there is sufficient evidence on the record from which the only inescapable conclusion is that Jonathan Mutsinze shot and killed Lessmore Kange at point blank range using the .38 special revolver.

Whilst mindful that the State bears the burden of proving its case beyond a reasonable doubt, such proof is not necessarily adduced through viva voce evidence. As in the present case, the confirmed warned and cautioned statement is one aspect of evidence tendered against the accused person.

Defence counsel submitted that it should be noted that the accused person was not legally represented when the statement was recorded.

Two aspects deflate this submission. Firstly, the statement was confirmed by a magistrate. That procedure, if judicially conducted, normally addresses concerns about impropriety in the recording of the statement. On that score, it is inadequate for counsel to submit that the statement was recorded from an unrepresented accused. Secondly, a challenge to the statement could have been mounted at the time it was tendered by the State. In this respect see section 256 of the Criminal Procedure and Evidence Act.

The record of proceedings will also show that the arresting details, being police officers, and, as such, being persons in authority were allowed to utter otherwise inadmissible confessions by the accused in clear violations of what has become elementary procedure.

See S v Nkomo 1989 ZLR (3) (S)…, per McNALLY JA.

The 40 years old accused stands accused of the crime of murder which was alleged to have been committed on 20 September 2013 at Gore Village, under Chief Nyamhondo, in Mberengwa in the Midlands Province.

He is alleged to have caused the death of Chipochashe Ndlovu, a female infant aged 3 years, by forcibly having sexual intercourse with her per vaginam and per anum, and assaulting her all over her body with an unknown object, intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

He denied the charge when it was put to him and went on to state that he never did all that was being alleged.

The State Outline was read for the record and produced as exhibit one. I do not intend to read it all over again. I shall, however, read the Defence Outline which was produced as exhibit 2 and it reads thus:

“The accused, having been served with the charge sheet informing him that he is facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], provides his defence outline as follows:

(1)The accused denies that he caused the death of Chipochashe Ndlovu in any way whatsoever.

(2)The accused denies that he had sexual intercourse with Chipochashe Ndlovu either through the vagina or through the anus.

(3)The accused person denies that he assaulted Chipochashe Ndlovu in any way whatsoever.

(4)The accused will state, that, on 20th September 2013, he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen. The next time he looked at Chipochashe Ndlovu, he observed that she was in fits, frothing from the mouth, and had fallen to the ground. He will state that he carried her to the homestead and laid her in one of the huts. She later died that same day.

The accused will give evidence but will not call any other witness.”

Exhibit 3 was the accused's confirmed extra curial statement where he maintained the story in his Defence Outline as follows:

“I have understood the caution, I do not admit to the allegations levelled against me, that I killed Chipochashe Ndlovu, an infant of 3 years, by forcing sexual intercourse with her through the vagina or through the anus and used an identified object to cause bruises on her body and she died because I did not kill her.

I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood. I later realised that the deceased had fallen to the ground as if attacked by fits. I carried deceased by the arm pit but she was unconscious until I reached home where she later died with froth coming out of the mouth. That is all.”

There is a material discrepancy between the accused's confirmed statement and his Defence Outline which he sought to rely on his evidence.

When he made his statement to the police, two days after the death of the deceased, matters were still very fresh on his mind. He stated thus:

“I took Chipochashe Ndlovu to look for firewood in the nearby bush and later sat the deceased at a foot path whilst I searched for firewood….,.”

In his Defence Outline, which was compiled two days before the trial, on 26 January 2015, which was after a period of one year four months, he stated as follows:

“The accused will state, that, on 20th September 2013, he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where Chipochashe Ndlovu sat in the road or path while he fetched firewood from the homestead perimeter screen….,.”

The fourth exhibit was a report form for the alleged sexual abuse and rape cases which was compiled by a nursing sister at Musume Hospital who examined the remains of the deceased a day after her death.

The nurse recorded the following in the report:

(a) Fresh bruise above the right eye;

(b) Two (2) fresh bruises on each side of the abdomen just above the groins; and

(c) A fresh bruise on the back.

On the genital examination, she recorded thus:

Bruises seen on the labia majora.

She marked both sides of the labia majora and also shaded both sides of the libia minora but made no narration about the shading on the labia minora.

She noted that the hymen was intact and there was no bleeding.

She finally opined that penetration was very likely.

The nurse gave viva voce evidence…,.

Exhibit 5 was a post mortem report compiled by Doctor S. Pesanai. He examined the remains of the deceased five days after her death.

He observed that the body was decomposed and had severe blotting; there was a small laceration 0.5cm at 6 o'clock; the anus was dilated with rectal laceration on the posterior. The skull had separated sutures frontal and both parieto.

He further remarked, that, the separated sutures that join the cranial bone could have been caused by pressure of decomposing brain or due to head injury.

The doctor could not see any obvious cause of death due to decomposition but went on to state that the child was sexually abused and that there was penetration though the anus causing a laceration in the rectum.

He concluded that the cause of death was uncertainable due to decomposition.

There was, however, a lacerated rectum giving rise to the conclusion that the child was sexually abused.

The doctor gave viva voce evidence…,.

The evidence of two police officers was admitted in evidence, by consent, as it appears in the State Outline in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Both officers were stationed at Mataga Police Station. The officers were Simbarashe Makope and Freedom Nyamutsamba. Their evidence, which was substantially materially similar, was that they did not know both accused and deceased prior to this case. On 21 September, they received a report of a suspected case of rape and murder at the station. They both proceeded to Nkomonye Village accompanied by one Shumeka Shumba, the informant.

On arrival, they found the deceased placed in a hut.

On examining the body, they observed bruises on the right side of the head, on the back, on the forehead, and on the abdomen; and froth coming out of the mouth. They then caused the body to be ferried to Musume Hospital for a medical examination. Later, the body was conveyed to United Bulawayo Hospitals for a post mortem examination.

They learnt, that, the accused had disappeared during a funeral wake. He was, however, arrested on 22 September 2013. An extra curial statement, exhibit 3, was recorded from the accused. He made his statement freely and voluntarily without any undue influence brought to bear on him.

The accused signed the statement.

By signing the statement, two days after the death of the deceased, the accused was signifying that what he had told the police was the correct sequence of events that took place on the fateful day.

He took Chipochashe Ndlovu to look for firewood in the nearby bush.

The assertion, in his Defence Outline, that he was accompanied by Chipochashe Ndlovu to a goats pen within the family homestead where she sat in the road or path while he fetched firewood from the homestead perimeter screen is clearly a hopeless after thought and must be rejected from the onset.

This court therefore makes a specific finding that the accused took the toddler with him to the bush on the pretext that he was going to look for firewood.

The accused…, recanted the narrative contained in his confirmed warned and cautioned statement, which was given when events were expected to have been fresh in his mind.

Then there was the Investigating Officer..., who did not see the wisdom of even extracting finger prints from anything that could shed light on who the perpetrator was; content only to rough up the accused's family members, obtain statements from them incriminating the accused person....,

In his testimony, the accused claimed to have used a broom stick. Nonetheless, his Defence Outline and the confirmed warned and cautioned statement refer to a knobkerrie. The two instruments cannot be mistaken for each other. Even if it were to be generously accepted that there was wrong interpretation from the vernacular in the warned and cautioned statement, the same cannot be said of the use of the same term in the Defence outline. Suffice it to note that there was no satisfactory explanation why the accused mentioned knobkerrie in the two documents.

Therefore, we hold that the accused used a knobkerrie as opposed to a broom stick.

A confirmed warned and cautioned statement…, is admissible upon its mere production by the prosecution. This does not mean that such a statement is immune from challenge by an accused if he decides to do so.

The effect is simply that the onus shifts to him if he/she decides to challenge it.

Philemon Makuku, a next door neighbour to the now deceased disputed what is said in both the summary of evidence and his statement to the police, which is that he heard the commotion or noise at of the now deceased's homestead on this night in question and that the next morning he found the now deceased lying down….,.

Instead, he said he did not hear anything on the night in question as he was tired and fell asleep….,.

Our assessment of Philemon Makuku is that he was a cagey witness who clearly was un-interested in assisting the court if that would give the impression of him involving himself in the affairs of the now deceased's family. He was not willing to answer simple questions or to explain inconsistencies between his statements and viva voce evidence. The impression we get is that he was rather an unwilling and dis-interested witness.

The English translation of the accused's warned and cautioned statement, which was duly confirmed of a magistrate at Tredgold Building on the 19^th May 2016, is in the following terms:

“My name is Tinashe Siziba. I stay at Robert Sinyoka at Number 118. On 19^th day of March 2016 I was drinking beer at Makoni Business Centre, Pumula South, Bulawayo. I left this place around seven in the evening now going home. I met a certain lady near a church in Pumula South. I struck her with a stone and she fell down. I took from her a phone and her bag. It was a Lumia Nokia type of phone with an Econet sim card (line). I opened her bag took out a white T-shirt written Oceans threw it down besides her. I ran away and when I got to a stream I threw away the bag taking away $2=. I went home to retire to bed. I woke up in the morning and went to Kudakwashe Mxolisi Moyo's place, I told him that I had a phone for sale but I did not tell him where I got it from. We left for Pumula Old Business Centre. On getting there we asked Mayors to look for someone who wanted it. Mayors sold the phone to Bekinkosi Gathuso for $15=. Mayors came and gave me the money.”…,.

Detective Constable Sigauke testified that the accused…, admitted involvement in the murder and reduced his version of events in his own handwriting in the Ndebele language. The statement was translated into the English version. A warned and cautioned statement was recorded from the accused and he was taken before a magistrate for confirmation of this statement. The accused confirmed before the magistrate that he had given his confession freely and voluntarily without any undue influence…,.

The accused stated that he was assaulted by police detectives leading him to admit committing the murder….,.

When he was confronted by police detectives, at the first instance, the accused said that he had picked up the deceased's phone. When pressed to explain how and where he picked the cellphone, the accused had no choice but to relate the truth to the police. The police asked the accused to write his own statement in long hand in his own handwriting. The statement recorded in the vernacular language was translated into the English version. That version now forms part of the record. The statement contains precise details regarding the murder to such an extent that there is no possibility to infer that the statement was dictated to the accused.

The details in the warned and cautioned statement could only have come from one with actual knowledge of how that crime was committed.

The Investigating Officer gave clear and reliable evidence of how he had used the IMEI (International Mobile Equipment Identity) number of the deceased's cellphone to link it to the deceased. The police followed their leads and interviewed Bhekinkosi Gumbo who led them to Mayors Zulu. Mayors Zulu led the police to the accused. The net had closed in, and, ultimately, the accused had nowhere to hide. His attempt to cast aspersions on the conduct of the police is without merit. If the accused had been assaulted to give a false confession, he would have raised this with the magistrate who confirmed his statement. The court takes judicial notice of the fact that if the accused had been kicked in the neck by the detective in the manner he described he would have suffered serious if not fatal injuries. This allegation, in my view, was made to simply mislead the court.

The evidence of D/Insp Chipanga is peripheral to the issue to be resolved. He confirmed that the accused made indications as per Exhibit 6 and 7. It was during those indications that he recovered the knife, Exhibit 3(a). The only other aspect of his evidence is that Gift Mabika gave a statement to the police and signed it which is in affidavit form….,.

Under cross examination, Jerald Chikwangwami disowned some parts of his statement to the police. These relate to the number of fights between the accused and the now deceased that night; whether he saw the body of the now deceased the following day….,.

Under cross examination, Ebbiot Shoko conceded that there were indeed disparities between his evidence and the statement he allegedly made to the police. Some of the aspects he disputed is that he saw the now deceased's body the next morning insisting he did not visit the scene the next day….,.

Darlington Gift Mabika also disowned part of the contents of his statement to the police. These relate to how he allegedly restrained the now deceased and the accused during the fight. In fact, Gift was categoric that the statement alluded to him was not his and that his signature was forged….,.

The State case is clearly plagued with insurmountable problems.

To start with all the civil witnesses disowned the statements alluded to them. They disowned the signatures on those statements - especially Gift who commented on the signature. This was indeed worrying to the court. Why would these simple rural people who had no discernible interest in how this matter would be resolved disown the statements they allegedly made? No possible motive was given or suggested. We are inclined to believe that the manner this matter was investigated leaves a lot to be desired. Beyond this we are unable to comment further.

The next relevant aspect of the evidence of the police witnesses was on the recording and confirmation of the warned and cautioned statements.

Sergeant Rashweth Mutaki had led the way. Sergeant Last Zimbandi had witnessed the process. The State went into some detail on how the statements had been recorded because the accused seemed to be challenging some aspects of his statement.

From the police witnesses' evidence, the three accused persons' warned and cautioned statements had been recorded at the police station at Muchakata - some two days after their arrest. Two sets of statements had been recorded from each of the accused persons. One set related to the charge of attempted murder in relation to Edward Zvinowanda. The other set related to the charge of murder in relation to Zvinowanda Zvinowanda. The accused had properly been warned and cautioned. He had opted to write down his statement in Shona. It had been translated to English. It had been read back to him. He had agreed with it. He had then signed it freely and voluntarily without any pressure having been brought to bear upon him or any promises having been made to him. Some six days later, i.e. on 16 May 2014, the accused's statement had been confirmed by a magistrate at Masvingo Magistrate's Court.

It transpired from the police witnesses that Bernard and Rabson had challenged their warned and cautioned statements in relation to the charge of attempted murder. As a result, those statements had not been confirmed. The confirmation process had been carried out at the same time in respect of all three….,.

The next relevant bit in the accused's testimony related to the recording and confirmation of the warned and cautioned statements.

He denied that he had written down his own statement or that he had signed it. He swore he never went to school and so he could neither read nor write. He maintained that the police had got Bernard to write down his [the accused's] statement and to sign it for him.

The accused denied that the police had recorded two statements from him and maintained that only one had been recorded. That one statement related to the attempted murder charge, not murder.

At confirmation, the accused maintained he did inform the magistrate that the police had assaulted him and that they had got Bernard to write his statement and to sign it for him. However, the accused claimed the magistrate had just kept quiet about it. The accused mumbled incoherently why the statements ascribed to Bernard and Rabson would not be confirmed when they had challenged them but only to have the magistrate confirm his alone….,.

The accused's version of how his warned and cautioned statement was recorded and confirmed would probably make sense in kindergarten. If believed, it would mean Sergeant Rashweth Mutaki, as the investigation officer, conspired to fix him. Sergeant Last Zimbandi, as the witness, and the magistrate who confirmed the statement would also have conspired against him. Finally, the court that tried him of attempted murder, and all the court officials involved in that trial, including the prosecutor, would also all have conspired to use a statement that clearly referred to a charge of murder. This is incredible and therefore not believable.

In his warned and cautioned statement.., the accused states that the reason he killed the deceased was that his wife had advised him that she had consensual sexual intercourse with the deceased.

The accused raised a new defence, of self defence, in his evidence-in-chief. For the very first time the accused suggested that he had struck the deceased with an axe because he was under imminent attack from the deceased. He stated, for the very first time, that he had been kicked by the deceased.

The picture that emerges is that the accused was inventing his defence at every stage of the case.