Elias Mudenda and Agrippa Mloyi v The State

The two appellants appeared before a provincial magistrate at Bulawayo charged with five counts of unlawful entry and five co-relating counts of theft. Following a full trial in which they pleaded not guilty to all charges, on 5 April 2016 they were each found not guilty and acquitted on four counts of unlawful entry and four counts of theft. However, each was convicted of one count of unlawful entry and one count of theft. The first appellant was convicted on counts seven and eight while the second appellant was convicted on counts nine and ten. The basis of their convictions was that in those counts each appellant's fingerprints were uplifted at the scene of crime. The crimes involved breaking into business premises, using a grinder to open safe boxes, and stealing cash. The appellants were acquitted on the rest of the charges because the state failed to lead evidence linking them to those offences.

• Whether fingerprint evidence alone is sufficient to support a conviction
• Whether the state is obliged to call the detail who uplifted fingerprints at the scene of crime to testify, or whether testimony from a fingerprint expert alone is sufficient
• Whether the fingerprint evidence was fabricated or discredited by the appellants' explanation that prints were taken from water bottles at the police station
• Whether the sentences imposed were appropriate given the value of the prejudice and whether counts should have been treated as one or run concurrently

Both appeals against conviction and sentence were dismissed in their entirety.

Where the state's case rests exclusively, entirely or substantially on fingerprint evidence found at a crime scene, the state must call a fingerprint expert to testify as to the basis upon which they arrived at their conclusion that the prints belonged to the accused. However, it is not always necessary to call the detail who physically uplifted the fingerprints at the scene, as it is the expert's opinion rather than the detail's evidence that establishes the link between the accused and the crime scene. Fingerprint evidence is damning in nature as it places an accused person at the scene of crime. Challenges to fingerprint evidence based on allegations of fabrication must be more than speculative and must be rational; where such allegations are irrational or contradicted by the timeline of evidence collection, there is no obligation on the state to call additional witnesses to rebut them. The value of prejudice is a relevant factor in sentencing and falls within the discretion of the sentencer.

The court made observations about the moral blameworthiness of different levels of theft, noting that "the moral blameworthiness of one who steals $2-00 cannot be equated to one who steals $50 000-00." The court also observed that in cases where cash is stolen, the evidence of witnesses as to the sums stolen can be accepted where not challenged, unlike cases involving stolen goods which require evaluation. The court noted approvingly that the fingerprint expert Chimbalanga was "quick to point out that although many scenes of crime were involved, he paired prints for only two scenes," suggesting that had he been given to fabrication, he would have easily claimed more - this was used as an indicator of his credibility and integrity.

This case is significant in Zimbabwean criminal procedure for clarifying the evidentiary requirements for fingerprint evidence. It establishes that where the state's case rests substantially on fingerprint evidence, it is sufficient to call a fingerprint expert to testify as to their analysis and conclusions; it is not always necessary to call the detail who physically uplifted the fingerprints at the scene. The case also demonstrates the high threshold required to successfully challenge fingerprint evidence through allegations of fabrication - such allegations must be more than speculative and must be rational in terms of timing and logistics. The judgment reinforces that fingerprint evidence is damning in nature as it places an accused at the scene of crime and can effectively destroy an alibi defence. The case also confirms that the value of prejudice is a relevant and proper consideration in sentencing, and that courts have discretion to assess sentences based on this factor.