The State v Cosmas Jumo

The accused was charged with the murder of Remember Mupasi on 27 May 2014 along 270th Street, Kuwadzana 3 in Harare. The deceased was attacked by unknown persons and sustained injuries to the head and shoulders, including a depressed skull fracture of the left parietal bone. He died the same day from subarachnoid haemorrhage arising from the head trauma. The deceased's cell phone, a Nokia Asher, was subsequently recovered from Bothwell Simenti who claimed to have purchased it from the accused for US$30 on 28 May 2014 at Mbare Bus Terminus. The accused was in the company of his wife during the transaction. The accused claimed he had obtained the phone from a school mate, Chimika Bauti, whom he had offered to sell it on behalf of for US$20. Chimika Bauti was arrested but subsequently committed suicide whilst in police custody. The accused denied ever being in Kuwadzana and stated he was visiting his sister in Kambuzuma before traveling to Gokwe.

• Whether the application for discharge at the close of the state case should be granted under s 198(3) of the Criminal Procedure and Evidence Act
• Whether the state led sufficient evidence upon which a court acting carefully might convict
• Whether circumstantial evidence of the accused's possession of the deceased's cell phone shortly after the attack was sufficient to put the accused on his defence

The application for discharge at the close of the state case was dismissed. The accused was put on his defence.

At the close of the state case, an application for discharge should be dismissed if the state has led evidence upon which a court acting carefully might convict, even if that evidence is purely circumstantial. The possession of property belonging to a deceased victim within hours of a fatal attack constitutes circumstantial evidence sufficient to require the accused to provide an explanation by being placed on his defence. The test for discharge is not whether the evidence is sufficient for conviction, but whether there is any credible evidence that might sustain a conviction. The defence proffered through cross-examination alone, without the accused testifying, is not sufficient to warrant discharge where the state has established a prima facie case requiring explanation.

The court noted that some details were omitted from witness statements that appeared in their evidence in chief, but observed that these omissions did not necessarily undermine the credibility of the witnesses, particularly where certain facts (such as the presence of the accused's wife during the transaction) were not disputed. The court also noted that the issue of whether the accused had been assaulted by police was under investigation pursuant to a court order, though this did not affect the determination of the discharge application.

This case illustrates the application of the principles governing discharge applications at the close of the state case in Zimbabwe criminal proceedings. It demonstrates that circumstantial evidence, particularly recent possession of property belonging to a deceased victim shortly after a fatal attack, can constitute sufficient evidence to require an accused to answer the charges. The case clarifies that at the discharge stage, the court is not concerned with sufficiency of evidence for conviction, but rather whether there is any evidence upon which a reasonable court might convict. It reinforces that where an accused is found in possession of property belonging to a victim shortly after a violent crime, the accused bears the burden of explaining that possession.