The State v Eallah Chinodya and Brian Tongowasha and Tongai Chinodya

On 7 October 2022, the deceased was drinking beer with colleagues at Nenyere Flats in Mbare, Harare. A mob of about 60 people, including the three accused persons, approached and confronted them over a disputed piece of land. The accused persons were identified as ring leaders who demanded the deceased and his colleagues vacate the land. When the deceased's colleagues distanced themselves, the mob, including the three accused, began assaulting the deceased with stones, open hands, and booted feet. The third accused (or first accused per different witness accounts) struck the deceased with a log on the head, causing him to fall. The mob continued assaulting the deceased even after he fell, stepping on his head with booted feet until he was unconscious and bleeding profusely from the mouth, nose, and head. The deceased was taken to hospital where he died from brain damage, severe head trauma secondary to assault, and epidural hematoma. The dispute arose from a land conflict between ZANU PF and CCC supporters. All three accused persons, who were CCC supporters, gave alibi defences. The High Court initially convicted them of murder, but the Supreme Court set aside the conviction and remitted the matter for reconsideration of mens rea under section 15(1) of the Criminal Law Code.

• Whether the accused persons possessed the requisite mens rea for murder as defined in section 47(1)(b) of the Criminal Law Code
• Application of the test in section 15(1) of the Criminal Law Code concerning realisation of real risk or possibility (awareness and recklessness)
• Whether the doctrine of common purpose under section 196A of the Criminal Law Code applied to hold all accused liable as co-perpetrators
• Assessment of alibi defences and the burden of proof thereon
• Determination of credibility of eyewitness testimony in mob violence context
• Whether it matters which accused struck the fatal blow when applying common purpose liability

All three accused persons were convicted of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

1. Under section 15(1) of the Criminal Law Code, the test for mens rea based on realisation of real risk or possibility is subjective and has two components: (a) awareness – whether the accused realised there was a real (not remote) risk that his conduct might cause death; and (b) recklessness – whether, despite that realisation, he continued with the conduct. 2. The subjective state of mind is determined by inferential reasoning from the accused's outward conduct and surrounding circumstances; the inference must be the only reasonable one that can be drawn from the proved facts. 3. Under section 196A of the Criminal Law Code, where two or more persons act together as co-perpetrators and each possesses the requisite mens rea, the conduct of the actual perpetrator is deemed to be the conduct of every co-perpetrator, regardless of who is identified as the principal actor or who directly contributed to the fatal act. 4. In mob assault cases, active participation as a ring leader, use of dangerous weapons (stones, logs, booted feet), utterance of threats of death, and persistence in assault after the victim has collapsed and shown signs of grave injury establish both awareness of the real risk of death and recklessness in continuing despite that awareness. 5. Alibi defences raised for the first time at trial, which were not disclosed during police investigations and thus could not be verified, may be rejected as fabricated when contradicted by credible eyewitness testimony from witnesses who knew the accused for years and identified them at close range.

The court observed that while section 50(4)(a) of the Constitution of Zimbabwe, 2013 grants an arrested person the right to remain silent and not incriminate himself, exercising this right and not disclosing an alibi defence during investigations has consequences: it prevents police from investigating and verifying the defence, which may lead to an adverse inference that the defence was concocted or fabricated when raised belatedly at trial. However, the court noted that this does not shift the burden of proof; the State must still prove guilt beyond reasonable doubt, and failure to do so entitles the accused to acquittal even if the alibi is shown to be false. The court also observed that in cases of mob assault, it is not uncommon for witnesses to perceive events differently depending on their attention, angle of observation, and whether they knew the perpetrators beforehand, which may result in some contradictions that do not necessarily undermine credibility. The court noted that defense counsel committed an error by leading witnesses on the material date rather than allowing the date to come from the witnesses themselves, particularly where the specific date is of the essence. The court also made general observations about the challenges of eyewitness identification in mob violence situations, noting that chaos and confusion can make it difficult to identify all perpetrators, but that prior knowledge of the accused and close-range interaction (such as being personally assaulted) enhances reliability of identification.

This judgment is significant in Zimbabwean criminal law for its comprehensive application of section 15(1) of the Criminal Law Code, which sets out the subjective test for determining mens rea based on realisation of real risk or possibility. The court clarified that the test has two components: awareness (whether the accused realised the real risk) and recklessness (whether he continued despite that awareness). The judgment emphasizes that this is a subjective test requiring assessment of what actually went on in the accused's mind, inferred from outward conduct and circumstances. The case also reinforces the doctrine of common purpose under section 196A, confirming that all participants in a mob assault who share the requisite mens rea are liable as co-perpetrators, regardless of who delivers the fatal blow. It provides guidance on assessing eyewitness testimony in mob violence contexts, acknowledging that witnesses may perceive events differently but that credible, corroborated testimony from multiple witnesses who knew the accused can establish guilt beyond reasonable doubt. The judgment also addresses alibi defences, noting that while there is no burden on the accused to prove an alibi, belated alibis that were not disclosed during investigation and which prevent police verification may be rejected as fabricated, particularly when contradicted by positive eyewitness identification. The case demonstrates the proper application of inferential reasoning in establishing mens rea and the integration of sections 15(1) and 196A in group criminality cases.