The State v Godfrey Kabheki, Graciano Phiri and Paymore Gandi

The three accused were charged with the murder of Edith Dickens, an 82-year-old woman, who was strangled with an electric cord tied around her neck at her home at 48 Broadlands Lane, Emerald Hill, Harare between 5 and 6 January 2001. The State alleged that the three accused and one other person (who absconded) conspired to steal goods from the deceased. Accused 1 was the gardener employed by the deceased. Accused 1 and 2 made indications at the scene which were videotaped, and Accused 2 made a warned and cautioned statement confirmed before a magistrate. The indications showed that Accused 1 opened the gate to admit the others, led them to the back of the house, and they entered. Accused 2 indicated he was looking for electrical goods while others manhandled and dragged the deceased from her bedroom to the lounge where she died from asphyxiation due to strangulation. All three accused denied involvement, claiming they were coerced by police assault and threats.

• Whether the indications made by Accused 1 and 2 were made freely and voluntarily or under duress
• Whether the warned and cautioned statement by Accused 2 was admissible
• Whether the extra-curial statements of one accused could be admitted as evidence against co-accused
• Whether the accused could be convicted as accessories after the fact to murder in circumstances where it was unclear which of them actually killed the deceased
• Whether a person can be an accessory after the fact to their own crime when aiding and abetting others

Accused 1 (Godfrey Kabheki) and Accused 2 (Graciano Phiri) were found guilty of being accessories after the fact to the murder of Edith Dickens. Accused 3 (Paymore Gandi) was found not guilty and acquitted.

Where evidence shows that one or other of multiple persons committed a crime but it is unclear which person, and the evidence shows that each aided and abetted the other to escape detection after commission of the crime, both may be found guilty as accessories after the fact. Although a person cannot directly be an accessory after the fact to their own crime, they may be an accessory after the fact when they aid and abet others who are accessories after the fact to their crime. Extra-curial statements by one accused are not admissible against a co-accused except where: (1) the co-accused by words or conduct accepts the truth of the statement making it their own statement; or (2) in cases of conspiracy, where statements made in execution or furtherance of the common design are admissible against other conspirators.

The court observed that the preamble to the warned and cautioned statement was in an unusual form not previously encountered, though the court distinguished the concerns raised in S v Kasikosa about preambles potentially deceiving accused persons, noting that in this case it was the accused himself who decided what should be included in the preamble. The court also made observations about the credibility of witnesses, noting it was difficult to believe that an 82-year-old woman would do all housework for 11 months without assistance from her gardener, or that she would leave her house after dark to deliver keys to the gate.

This case is significant in Zimbabwean criminal law for its application of the principle from R v Victor regarding accessories after the fact. It demonstrates that while individuals cannot directly be accessories after the fact to their own crimes, they can be convicted as such when they aid and abett others in escaping detection after a crime where it is unclear which of multiple participants actually committed the substantive offense. The case also illustrates important principles regarding the admissibility of extra-curial statements and indications, the assessment of voluntariness of confessions, and the strict rule that extra-curial statements by one accused are generally not admissible against co-accused except in limited circumstances. It provides guidance on how courts should assess credibility when accused persons allege police coercion.