The State v S.J (Redacted) and Philip Basilio

On 24 February 2024 at approximately 2200 hours at number 27 Dacomb Drive, Chisipite, Harare, the deceased Tafadzwa Ukama was killed. The first accused (S.J), a male juvenile, had previously stolen the deceased's Samsung A11 cellphone on 23 February 2024 and fled after being spotted. The deceased was hunting for the first accused to recover his phone. On the night of 24 February 2024, the first accused, together with alleged accomplices, went to the deceased's residence. The first accused knocked on the deceased's door, identifying himself. Once the door was opened, the deceased was assaulted with fists, thrown down the staircase from the first floor, and then struck twice on the head with a wooden pick handle weighing 0.929 kgs. The attackers then searched the deceased, took his tablet, phone, and US$25.00, covered his body with a blanket, and fled in his Honda Fit vehicle (registration AFT 4373) toward Nyamapanda with the intention of crossing into Mozambique. They failed to stop at a police roadblock and subsequently had an accident when the vehicle overturned. The accused fled the scene. The deceased's body was discovered on 25 February 2024. A post-mortem examination concluded the cause of death was subarachnoid hemorrhage, skull base and vault fracture, and head trauma. The first accused was arrested at Nyamapanda Border Post on 31 March 2024 and implicated the second accused, Philip Basilio. The second accused was arrested on 12 May 2024.

• Whether the second accused was an accomplice to the murder based solely on the implication by the first accused
• Whether the State proved beyond reasonable doubt the second accused's participation in the murder
• Whether the first accused could be convicted of murder based on his confession and the doctrine of common purpose despite the acquittal of the co-accused
• Whether the first accused had actual intention to kill the deceased
• The application of the doctrine of common purpose where only one accused is before the court or where co-accused are acquitted
• The admissibility and weight of alibi evidence not properly investigated by police

The first accused, S.J, was found guilty of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The second accused, Philip Basilio, was found not guilty and acquitted.

The binding legal principles established are: (1) Under section 197(2)(b) of the Criminal Code, an accomplice or co-perpetrator can be convicted even if the actual perpetrator or other accomplices are not before the court or have been acquitted; (2) The liability of a co-perpetrator does not depend on the conviction of the actual perpetrator or other accomplices; (3) Even slight assistance by an associate in common purpose is sufficient to establish criminal liability for murder (applying S v Mgedezi 1989 (1) SA 687 (A)); (4) Common purpose liability attaches where an accused: (a) was present at the scene, (b) associated with co-perpetrators in acts of commission or omission, and (c) associated himself with the conduct; (5) A court may convict based on confession alone under section 273 of the Criminal Procedure and Evidence Act where the offence has been proved by other competent evidence; (6) Where an alibi is raised at the earliest opportunity (in a warned and cautioned statement), it is the responsibility of the police and prosecution to investigate it and failure to do so affects the weight of evidence against the accused; (7) Actual intention to kill can be inferred from: the weapon used, the body part attacked, the severity of the attack, and whether the plan was executed as intended.

The court made several important observations: (1) It would be "absurd to excuse an accused who has been positively identified within a group of assailants to have committed the offence simply because the rest of the group members are not before the court"; (2) Conversely, "it would be legally incompetent to prefer a charge of murder as if the said accused committed the offence alone" where causation issues would defeat the charge; (3) The court commented on the first accused being "an unrepentant delinquent" and a "troubled child" based on the stepmother's evidence; (4) The court noted the first accused's claim that his legal practitioner advised him to change his plea from guilty to not guilty "so that the matter could proceed" - an interesting commentary on defense strategy; (5) The court observed that the second accused's application for CCTV footage from ZINARA (which was unavailable due to passage of time) demonstrated his genuineness, reasoning that he would not have sought such evidence if he knew it would incriminate him; and (6) The court implicitly criticized the investigating officer's decision to proceed with prosecution of the second accused despite the first accused exonerating him, noting the senior officer said "since the docket was complete, they should just go to court."

This case is significant in Zimbabwean criminal jurisprudence for several reasons: (1) It clarifies the application of the doctrine of common purpose where only one accused is before the court or where co-accused are acquitted, confirming that liability does not depend on conviction of all participants; (2) It reinforces that even slight assistance in a common purpose is sufficient for criminal liability under section 197(2)(b) of the Criminal Code; (3) It demonstrates the importance of police investigation of alibis raised at the earliest opportunity in warned and cautioned statements; (4) It establishes that conviction based on confession alone is permissible under section 273 of the Criminal Procedure and Evidence Act where the offence is proved by other competent evidence; (5) It illustrates the assessment of credibility where an accused changes versions multiple times; and (6) It addresses juvenile criminal responsibility in serious offences while applying the same legal principles as for adults.