The State v Prisca Mudyanadzo and Maxwell Moyo and Tafadzwa Hove

On 3 July 2013 at Getrude Park, Makokoba, Bulawayo, the three accused persons were charged with murder of an unknown male adult. Accused 1 (Prisca Mudyanadzo), accused 2 (Maxwell Moyo) and accused 3 (Tafadzwa Hove) were at Gijima Night Club. According to the state witness Sharon Nyathi (accused 2's girlfriend and accomplice witness), accused 1 approached the deceased and spoke to him for about two minutes, then informed accused 2 and 3 that "the boy has a lot of money" and that she was taking him to Getrude Park for them to follow, assault him and take his money. Accused 1 left with the deceased to Getrude Park. Accused 2 armed himself with a brick and followed with accused 3 and Sharon. At the park, accused 3 confronted the deceased asking "what are you doing with my wife?" Accused 2 struck the deceased with a brick on the head. Accused 3 stabbed the deceased in the abdomen and behind the ear, then searched him and took his money, tennis shoes and cellphone. The deceased was found the next morning by a police constable still alive but injured, with intestines protruding. He later died at Mpilo Hospital. Accused 1 was 21 years old, a commercial sex worker of no fixed abode. Accused 2 was just below 21 years. Accused 3 died in prison during the trial on 8 August 2014.

• Whether evidence of an accomplice witness (Sharon Nyathi) obtained through alleged torture is admissible under section 70(3) of the Constitution of Zimbabwe
• Whether the evidence of the accomplice witness is credible and reliable despite inconsistencies
• Whether accused 1's confirmed warned and cautioned statement binds accused 2
• Whether accused 1 acted in common purpose with accused 2
• Application of the cautionary rule to accomplice evidence
• Whether accused persons should be discharged at the close of the state case under section 198(3) of the Criminal Procedure and Evidence Act
• The appropriate sentence for murder committed in the course of robbery by youthful offenders

Accused 1 (Prisca Mudyanadzo): Guilty of murder with constructive intent - sentenced to 20 years imprisonment. Accused 2 (Maxwell Moyo): Guilty of murder with actual intent - sentenced to life imprisonment. Accused 3 (Tafadzwa Hove): Died in prison during trial on 8 August 2014 from inguinal hernia/intestinal obstruction.

1. Under section 70(3) of the Constitution of Zimbabwe, evidence will only be excluded if: (a) it was obtained in a manner that violates constitutional provisions; AND (b) its admission would render the trial unfair or be detrimental to justice. Torture or assault to obtain evidence about unrelated matters does not taint voluntarily given evidence about the crime charged. 2. An accomplice is a competent and compellable witness under section 267 of the Criminal Procedure and Evidence Act. A court may convict on single evidence of an accomplice provided the offence has been proved aliunde by other competent evidence (section 270). 3. The cautionary rule for accomplice evidence requires: (a) the court must consciously remind itself to be careful; and (b) seek safeguards reducing risk of wrong findings. Corroboration satisfies the rule but is not essential - any factor reducing the risk of error suffices. 4. Minor inconsistencies in accomplice evidence are not fatal unless they go to the root of the matter and change its complexion. 5. A co-accused who takes the witness stand becomes a competent witness against other accused persons, and their viva voce evidence is admissible against co-perpetrators. 6. Under the doctrine of common purpose, where participants agree to robbery and foresee death as a real possibility but not a substantial certainty, they are guilty of murder with constructive intent. Where the actual perpetrator foresees death as a substantially certain result, they are guilty of murder with actual intent. 7. The death penalty is inapplicable to persons who were under 21 years at the time of commission of the offence, per section 48(2) of the Constitution.

The court commended the investigating officer for taking the accomplice witness Sharon to her rural home to ensure her availability for trial, stating this was a proper balancing of individual interests against the interests of justice and had no bearing on the quality of her evidence. The court observed that murder committed in the course of robbery is "a particularly serious crime deserving the severest of punishment" due to the high moral blameworthiness involved. The court commented on the tragic backgrounds of the youthful offenders - accused 1 having run away from home at age 11 to become a commercial sex worker, and accused 2 coming from a broken family and turning to crime after his mother died when he was 16. The court noted that accused 2 was "a wicked man who does not respect human life" and that "if he is allowed to come out of prison and live with the rest of society, the chances that he will repeat his murderous ways are very high indeed" - justifying the life sentence despite his youth.

This case is significant in Zimbabwean criminal law for its comprehensive treatment of several important principles: (1) It clarifies the application of section 70(3) of the Constitution of Zimbabwe regarding exclusion of evidence obtained through torture, establishing that the torture must relate to the specific evidence sought to be excluded; (2) It provides detailed guidance on applying the cautionary rule to accomplice evidence under sections 267 and 270 of the Criminal Procedure and Evidence Act; (3) It affirms that a co-accused who testifies becomes a competent witness against other accused persons; (4) It applies the doctrine of common purpose in the context of robbery-murder, distinguishing between constructive and actual intent based on foreseeability; (5) It demonstrates the differential sentencing approach for youthful offenders involved in serious crimes, balancing aggravating circumstances with constitutional protections against the death penalty for persons under 21 years.