Bukhosi Khuboni v The State

The appellant and three co-accused were charged with multiple offences: eight counts of unlawful entry into premises, three counts of robbery, and five counts of theft. A gang of armed robbers broke into houses in high-density suburbs of Bulawayo at night, using axes or iron bars to break doors, threatening victims to cover themselves with blankets before robbing them. The appellant was arrested on 28 November 2015 after police received a tip-off. Two eagle speakers stolen during a robbery committed on 16 November 2015 at Priscilla Sibanda's house in Nkulumane 5 were found in the appellant's lodgings. After arrest, the accused allegedly pointed out houses they had broken into to the police. The trial court acquitted them on four counts but convicted them on 12 counts, sentencing them to an effective 13.5 years imprisonment.

• Whether the indications made by the accused to police were admissible without proof they were made freely and voluntarily
• Whether the identification of the accused by complainants at the police station without an identification parade was reliable and admissible
• Whether the constitutional rights of arrested persons under sections 50, 69 and 70 of the Constitution were respected during investigations
• Whether the doctrine of recent possession applied to the two speakers found in the appellant's possession
• Whether the convictions could be sustained on the available evidence

1. The appeal against conviction in counts 1, 2, 3, 4, 5, 6, 11, 12, 13 and 14 succeeded and the convictions and sentences therein were set aside. 2. The appeal against conviction and sentence in counts 9 and 10 was dismissed. 3. The sentence was altered to 3 years imprisonment total, with 6 months suspended on condition of future good behaviour and 1 month suspended on condition of restitution of $9.00 to Priscilla Sibanda by 31 December 2017.

1. All statements made by an accused person to police, whether written, oral, or by way of indications (mute statements), are inadmissible unless the prosecution first establishes they were made freely and voluntarily without undue influence. 2. The constitutional rights of arrested persons under sections 50, 69 and 70 of the Constitution must be respected and explained to arrested persons, including the right to remain silent, not to be compelled to make confessions or self-incriminating statements. 3. Indications made by an accused person are subject to the same admissibility requirements as confessions and statements under section 256 of the Criminal Procedure and Evidence Act (previously section 242). 4. Identification evidence obtained by having complainants identify suspects at a police station without a proper identification parade is unreliable and requires corroboration, particularly where the initial observation of suspects was under poor conditions. 5. Under the doctrine of recent possession (section 123 of the Criminal Law (Codification and Reform) Act), where a person is found in possession of recently stolen property and gives false or unreasonable explanations, the court may infer guilt of theft or robbery.

Mathonsi J made strong observations about the need for police reform, stating: 'If the police service in this country does not reform or remains determined to bury heads in the sand in typical ostrich style when the courts repeatedly advise it to re-adjust its ways of doing business in line with the requirements of the new constitutional order, then it runs the genuine risk of being rendered ineffective in the face of what appears to be escalating criminal activity among communities.' The court observed that 'a lot of extremely dangerous criminals are being let off the hook because investigators appear to ignore the constitutional rights of those that they arrest.' The judge emphasized the need for investigators to be 'trained, retrained and refreshed' on constitutional rights. The court also commented that the practice of driving accused persons around to point at houses and then asking occupants if there had been a break-in, without proper procedures, was 'an exercise in futility' and 'a complete waste of time.'

This case is significant in Zimbabwean criminal procedure for its strong judicial criticism of police investigative practices that violate constitutional rights. It reinforces the principle that fundamental rights in Chapter 4 of the Constitution cannot be derogated from, even in the prosecution of serious crimes. The judgment emphasizes that courts must uphold constitutional rights at the expense of convictions where proper procedures are not followed. It provides clear guidance on the admissibility of confessions, statements and indications, reaffirming that indications are 'mute statements' subject to the same admissibility requirements as verbal or written statements. The case highlights the dangers of improper identification procedures and the necessity of identification parades where witnesses had poor opportunity to observe suspects. It serves as a warning that failure to respect constitutional rights and proper criminal procedure will result in dangerous criminals being acquitted, placing the burden on police to reform their investigative practices.