The State v Austin Thom

On 19 March 2017, the accused together with a co-accused and other unknown persons entered the complainant's premises at 90 Harare Drive Greystone Park by scaling the precast wall. When the complainant's dogs started barking, she went outside to investigate and was confronted by the intruders. One accused grabbed her by the neck while another stabbed her twice with a sharp object on the left side of the head and shoulder. She was also assaulted with a metal pipe and punched in the face, breaking her spectacles. The accused persons dragged her into the house, ransacked it, took safe keys, and stole diamond and gold coated rings, a box containing jewelry, necklaces, cash amounting to $100.00, a hunting knife, and a Nokia 2012 cell phone. They also forcibly removed two gold rings and a wristwatch from her hand. The accused was charged with both attempted murder under s 189(1)(a)(b) as read with s 47(1)(a)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and robbery under s 126(1)(a)(b) of the same code. The co-accused was acquitted at trial. The accused was convicted on both charges and sentenced to 6 years imprisonment for attempted murder and 10 years for robbery (total 16 years, with 3 years suspended for 5 years on conditions).

• Whether there was improper splitting of charges arising from the same transaction
• Whether convicting the accused of both attempted murder and robbery based on the same set of facts constituted duplication of convictions
• What is the dominant intention test for determining proper charges
• Whether the same evidence test applies when the evidence for both charges is identical
• The appropriate remedy when improper splitting of charges has occurred
• The appropriate sentence for robbery committed in aggravating circumstances

The attempted murder conviction was set aside. The robbery conviction was upheld. The accused was sentenced to 10 years imprisonment for robbery, of which 2 years was suspended for 5 years on condition that during that period the accused does not commit any offence involving violence or assault on the person of another or dishonesty for which he is convicted and sentenced to a term of imprisonment without the option of a fine. The complainant was to collect the Nokia 1202 cell phone. The weapons produced as exhibits were ordered forfeited and destroyed.

Where an accused is charged with two or more offences arising from the same set of facts or transaction, and the acts were committed with a single dominant intent, and the same evidence is required to prove both offences, there is improper splitting of charges resulting in duplication of convictions which is prejudicial to the accused and infringes the right to a fair trial. In such cases, the prosecution should charge only the offence which reflects the accused's dominant purpose. When determining which charge should stand where improper splitting has occurred, the court must identify the accused's dominant intention. Where the dominant intention is to commit robbery and violence is used as a means to achieve that purpose, the robbery charge is the proper charge and any conviction for attempted murder arising from the same transaction should be set aside to avoid duplication.

The court observed that improper splitting of charges has become a constitutional issue, as it infringes an accused's right to a fair trial. The court noted that prosecutors need to be more careful in framing charges and that it is the duty of trial courts to scrutinize charges preferred by the state to ensure they are proper and comply with legal requirements. Courts cannot adopt a laissez-faire attitude but must moderate proceedings. Where a court realizes charges have been improperly split, it should query the charges with the prosecution. Where an accused is legally represented, the defense is expected to except to improper charges. The court noted that where improper splitting is realized before charges are put to the accused, the proper course is for the prosecution to withdraw the duplicated charges. The court also observed that where improper splitting results in conviction, courts on review or appeal may treat all offences as one for purposes of sentence to eliminate prejudice, though in this case the court opted to set aside one conviction entirely.

This case is significant in Zimbabwean criminal law and procedure for clarifying the rule against improper splitting of charges. It demonstrates the constitutional implications of charging an accused with multiple offences arising from the same transaction with a single dominant intent. The judgment reinforces that improper splitting infringes an accused's right to a fair trial and provides guidance on applying the "single intent/continuous transaction" test and the "same evidence/dominant intent" test. The case emphasizes the prosecutorial duty to carefully frame charges and the judicial duty to scrutinize charges to prevent duplication of convictions. It confirms that where facts disclose multiple offences but arise from one transaction with a single dominant purpose, the prosecution should charge only the offence reflecting the dominant intention. The case illustrates how South African jurisprudence on this issue (including cases like S v Benjamin, S v Brereton, and R v Marinus) is persuasive authority in Zimbabwe.