Charles Farai Mubika v The State

The deceased, Heather Margaret Desmond, was murdered by her gardener Godden Matanga on July 1, 2000, at her Chisipite residence. Godden killed her, burned her body on a compost heap, and stole her handbag, wallet, cellphone, sunglasses, and car keys. Godden gave the cellphone to his cousin Guideson Kanyemba to sell. On the evening of July 1, Guideson took the cellphone to the appellant at a party in Mufakose Township, claiming it was his and he needed money urgently. The appellant sold the cellphone that night for Z$2,500. The next day, Guideson brought the deceased's motor vehicle to the appellant's residence. Despite the appellant asking several times "if there was nothing fishy about the car," he drove the vehicle around Harare for about four days until their arrest. During this period, they gave false particulars to a car park guard and sold two speakers from the vehicle. The appellant, Godden, and Guideson were tried together for murder and theft.

• Whether the appellant was properly convicted as an accessory after the fact to murder
• Whether the appellant was guilty of theft of the deceased's motor vehicle and cellphone
• What constitutes guilty knowledge in receiving stolen property
• Whether the appellant foresaw the real possibility that the goods were stolen and acted recklessly

The appeal against conviction on the first count (accessory after the fact to murder) was allowed. The conviction was quashed and the sentence of twelve years' imprisonment with labour was set aside. The appeal against conviction on the second count (theft) was dismissed in its entirety, and the sentence of eight years' imprisonment with labour was upheld.

An accessory after the fact is someone who unlawfully and intentionally, after completion of the crime, associates himself with the commission of the crime by helping the perpetrator evade justice. There must be evidence of such assistance to evade justice for a conviction. Regarding theft of stolen property: (1) theft is a continuing crime that continues as long as the thief or his agent is in possession of stolen property; (2) one who assists in depriving the owner of property after the original taking is guilty of theft; (3) if the State shows that an accused, when receiving stolen goods, must have foreseen the real possibility that the goods were stolen and did not care whether they were stolen or not, this is sufficient to prove guilty knowledge; and (4) it is not necessary to prove why the accused did not make inquiries as to ownership - reckless receipt not caring whether goods were stolen is sufficient.

The Court noted that the appellant's behaviour was "not the behaviour of an innocent person," observing that giving false particulars to a car park guard was something an innocent person would not do. The Court also commented that the circumstances of Guideson (employed as a general hand) selling an expensive cellphone at night at a "give away" price should have put the appellant on his guard. While these observations supported the finding of guilt, they also indicate the Court's view on what conduct indicates consciousness of guilt versus innocence.

This case clarifies important principles in Zimbabwean criminal law regarding: (1) the elements required to prove accessory after the fact to a crime, specifically that the accessory must have helped the perpetrator evade justice; (2) the doctrine of theft as a continuing crime; (3) the standard for establishing guilty knowledge when receiving stolen property, confirming that recklessness (foreseeing the real possibility that goods are stolen and not caring) is sufficient mens rea; and (4) the evidential value of an accused's own statements and subsequent conduct in determining guilty knowledge.