The State v Onias Mungwani and Nhamo Mbedzi and Mgcini Nyoni and Peter Murombo

The four accused persons were charged with murder. It was alleged that on 1 October 2020, they assaulted Stewart Moyo to his death. The deceased had stolen a box of cooking oil from a motor vehicle and fled. The fourth accused chased the deceased, who fell into a pit. A group of approximately 15 people gathered at the scene. The State's case rested on the warned and cautioned statements of the accused persons, a post-mortem report, and evidence from one witness who observed events from afar. The witness did not see what happened in the pit as it was dark, and only saw the accused persons bringing the deceased to a lit area. The witness did not see the fourth accused among the alleged assailants. The depth of the pit was not measured by police. The accused persons denied assaulting the deceased and attributed any assault to other individuals. All four accused pleaded not guilty and applied for discharge at the close of the State case.

• Whether the State established a prima facie case of murder against the accused persons at the close of the State case
• Whether the evidence adduced was sufficient to place the accused persons on their defence
• Whether the quality of the State's evidence was so poor that it could not be relied upon for conviction
• Whether the State proved the essential elements of the offence of murder
• Whether the fourth accused had any case to answer given the witness evidence

All four accused persons were found not guilty and discharged in terms of section 198(3) of the Code (Criminal Procedure and Evidence Act).

An accused person is entitled to discharge at the close of the State case where: (1) there is no possibility of conviction unless the accused enters the witness box and incriminates himself; (2) the evidence of State witnesses is of such poor quality that it cannot be relied upon; (3) there is no credible evidence upon which a court, acting carefully, may convict; and (4) the State has failed to prove essential elements of the offence. The State bears the entire burden of proving guilt and cannot place accused persons on their defence to bolster a case that cannot stand alone. It is not a judicious exercise of discretion to put an accused on his defence where the State case, standing alone, cannot be proved. The court must apply a three-pronged approach: analyzing whether essential elements of the offence are present, investigating whether a court acting carefully may properly convict, and critically assessing whether evidence is palpably unreliable.

The court made observations about the inadequacy of the police investigation, particularly noting that police failed to measure the depth of the pit into which the deceased fell - an essential fact that could determine whether severe or fatal injuries could result from the fall alone. The court also commented that the language and tone of the warned and cautioned statements did not assist the State's case. The judgment emphasized that defence outlines help establish what is truly in issue between the State and accused, and map the evidence required from the State. The court noted that where accused persons attribute assault to other individuals, it is proper for the State to call those individuals or lead cogent evidence eliminating that possibility before closing its case.

This case demonstrates the application of the threshold test for discharge at the close of the State case in Zimbabwean criminal procedure. It reinforces the principle that the State must establish a prima facie case based on credible evidence before accused persons can be placed on their defence. The judgment emphasizes that courts cannot exercise discretion to continue trials merely hoping that evidence might emerge from the defence, as this would violate the accused's constitutional rights to be presumed innocent, to remain silent, and not to be compelled to testify. The case illustrates the importance of thorough police investigation, including measuring crime scene dimensions and calling all material witnesses. It also demonstrates judicial willingness to critically assess the quality of State evidence and grant discharge where evidence is of such poor quality that no careful court could convict upon it.