The State v Tamunde Toga

The accused was charged with the murder of her four-year-old granddaughter, Teckler Zamanja, on 10 January 2012 at Zinatsa village, Chief Svosve Marondera. The accused had been caring for the deceased for two months at the request of the child's parents. On the day of the incident, the accused had gone to work in Samuel Machekanyanga's field, taking the deceased with her. She later returned home to release cattle for grazing and instructed her eight-year-old son Phineas to drive the cattle to pasture. The deceased accompanied Phineas. Phineas later called out that the deceased was unable to walk or talk. The accused found the deceased at the borehole sink, carried her home, and attempts were made to revive her, but she died. The deceased had sustained a head wound and multiple bruises. The State's case relied on alleged extra-curial statements by the accused, which were ruled inadmissible after a trial-within-a-trial. Phineas was the last person seen with the deceased.

• Whether the accused unlawfully killed the deceased with intent to kill or realizing the risk of death
• Whether the State proved its case beyond reasonable doubt on circumstantial evidence
• The admissibility of extra-curial statements
• The treatment of a hostile witness and the evidentiary value of previous inconsistent statements
• Whether guilt could be inferred from circumstantial evidence

The accused was found not guilty and acquitted.

1. A previous inconsistent statement by a witness does not become evidence in itself and cannot be relied upon to prove a party's case when the witness repudiates it in court; such statements can only neutralize adverse testimony. 2. When a witness is declared hostile, the adverse evidence given is effectively neutralized as evidence led by the party against itself, though it is not ipso facto to be disregarded and may be considered depending on the weight attached to it. 3. Circumstantial evidence must be narrowly examined, and before drawing an inference of guilt, the court must be sure there are no other co-existing circumstances which would weaken or destroy the inference. 4. The prosecution bears the burden of proving guilt beyond reasonable doubt, and where evidence raises alternative reasonable inferences, including that another person may have been responsible, an acquittal must follow.

The court made several non-binding observations: 1. Counsel must always research thoroughly and be ready to assist the court with meaningful submissions, including proper citation of authorities. 2. Given the age of child witnesses and the nature of sensitive cases, the prosecution should utilize victim-friendly court facilities. 3. It was irregular for police to have Phineas's sister sign his statement as a witness when it was not recorded in her presence, indicating improper procedure in obtaining the statement. 4. The court noted that taking into account the witness's age and the nature of the case, it should have been apparent to the prosecution that there was need for the witness to testify at the victim-friendly court.

This case is significant for its application of principles regarding hostile witnesses and the evidentiary value of previous inconsistent statements in Zimbabwean criminal law. It reaffirms that when a witness repudiates a previous statement in court, that statement cannot itself become evidence and the contents cannot be relied upon to prove the State's case. The case also demonstrates the strict approach courts must take to circumstantial evidence, requiring the exclusion of all other reasonable inferences before guilt can be established. It highlights the importance of proper police procedures in recording statements from child witnesses and the need for victim-friendly court facilities when children testify in sensitive cases.