State v Frederick Thembinkosi Chunga and Patricia Tembo

The two accused were charged with murder allegedly committed between April 2005 and August 2005. The state alleged that the first accused knocked down the deceased George Nyachumbu with a Nissan Hi Rider vehicle along a dirt road linking Burnhills and Mvurachena Farm, Raffingora. Farm workers allegedly put the body in a sack, removed the deceased's genitals, and buried the body in the deceased's field. The second accused allegedly prepared medicinal potion from the genitals and gave medicine to those involved to ward off vengeful spirits. Workers were promised monetary rewards that never materialized, leading to an anonymous letter being deposited at a police station. The deceased's remains were later exhumed showing a skull fracture consistent with blunt trauma. The deceased's brother discovered the remains in October 2006 in a covered pit intended for a toilet. Police investigations followed the anonymous letter and several farm workers were initially detained as suspects before being turned into state witnesses.

• Whether there was sufficient evidence to prove the essential elements of murder
• Whether the evidence presented by the state was reliable enough to convict
• Whether the testimony of accomplice witnesses who were impeached could be relied upon
• Whether hearsay evidence could establish the accused's guilt
• Whether the identity of the deceased was properly established
• Whether discharge at the close of the state case was appropriate under section 198(3) of the Criminal Procedure and Evidence Act
• The application of section 267 regarding accomplice witnesses who fail to answer questions truthfully

Both accused were found not guilty and discharged. Maplan Kondori was discharged from all liability arising from the proceedings as he testified consistently with his statement. However, Lovemore Zulu Sande, Gift Damiano, and Canaan Bvimba were not discharged from liability to prosecution as they failed to answer questions truthfully and departed from their sworn statements, though the state was advised to consider the allegations of police ill-treatment in deciding whether to prosecute them.

A court must discharge an accused at the close of the state case where: (1) there is no evidence to prove an essential element of the offence; (2) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (3) the evidence adduced by the state is so manifestly unreliable that no reasonable court could safely rely on it. Where the only evidence linking an accused to a crime is hearsay, and no direct evidence exists of the commission of the offence by the accused, discharge is mandatory. When accomplice witnesses are impeached and their testimony consists primarily of hearsay, a court cannot rely on such evidence to convict. The impeachment of a witness does not automatically mean all evidence must be rejected, but where witnesses depart from previous statements and equivocate substantially, their evidence becomes unreliable. Prior inconsistent statements do not themselves become evidence; they serve only to neutralize unexpectedly adverse testimony. Under section 267 of the Criminal Procedure and Evidence Act, accomplice witnesses who fail to answer questions fully and truthfully are not entitled to discharge from liability to prosecution.

The court expressed concern about the allegations of ill-treatment of witnesses by police during investigations, noting that witnesses claimed to have been assaulted, forced to squat (sitting in 'air'), and detained for extended periods. The court recommended that the state should be guided by these allegations when considering whether to prosecute the accomplice witnesses who failed to testify truthfully. The court also commented on procedural irregularities in the investigation, noting that police did not search the deceased's premises or conduct local enquiries when they attended the scene where remains were recovered. The court noted inconsistencies regarding how the remains were brought to the surface, with the deceased's brother claiming he was instructed to do so while police claimed they assisted. There was also an irregularity noted regarding the joint affidavit of the pathologists, with Dr. Masokovere conceding that an affidavit cannot be attested vicariously. The court observed doubt regarding the identity of the exhumed remains, as proper identification procedures were not followed.

This case is significant in Zimbabwean criminal law and procedure for its comprehensive treatment of several important evidentiary issues: (1) the application of section 198(3) of the Criminal Procedure and Evidence Act regarding discharge at the close of the state case; (2) the treatment of impeached witnesses and the limited use that can be made of their prior inconsistent statements; (3) the proper handling of accomplice witnesses under section 267 and the consequences when they fail to testify truthfully; (4) the prohibition against relying on hearsay evidence to establish essential elements of a crime; and (5) the requirement that the state must prove both that a crime was committed and that the accused committed it. The case demonstrates the court's vigilance in protecting accused persons from conviction based on unreliable evidence, even in serious cases like murder. It also illustrates the challenges faced by prosecution when key witnesses turn hostile and the importance of reliable, direct evidence in criminal trials.