The State v Taurai Gwade

On 19 December 2014 at approximately 20:00 hours at St Joseph Primary School basketball court in Beitbridge, the deceased Onward Chiripamberi was parked in his Toyota Carina with his girlfriend Rudo Mashavave. Two assailants approached the vehicle, smashed the driver's window, and demanded cash and cellphones. The accused struck the deceased on the head with an iron bar. The deceased got out and struggled with the assailant while the accomplice struck Rudo on the cheek with an iron bar, causing her to flee. The assailants took over the vehicle, pursued the deceased who was running away, ran over him, and disappeared with the motor vehicle. They stole the deceased's Samsung Galaxy Note 3 cellphone, a memory stick, and Rudo's Samsung laptop, bag, counter book and FBC pen. The deceased sustained very serious injuries and died on the way to Bulawayo hospital. Police recovered the vehicle abandoned on 20 December 2014. On 25 December 2014, police arrested the accused at his house in Mvuma and recovered the stolen property. The accused gave a warned and cautioned statement which was confirmed by a magistrate on 29 December 2014.

• Whether the accused could be identified as one of the perpetrators of the murder despite poor visibility
• Whether circumstantial evidence and the doctrine of recent possession could establish the accused's guilt beyond reasonable doubt
• Whether the accused's explanation for possession of stolen property was reasonable
• Whether the accused's warned and cautioned statement was freely and voluntarily made
• Whether the murder was committed with actual intent
• Whether the murder was committed in aggravating circumstances warranting the death penalty under section 47 of the Criminal Law Codification and Reform Act

The accused was convicted of murder with actual intent. The court sentenced the accused to death, ordering that he be returned to custody and the sentence of death be executed upon him according to law.

Where an accused is found in recent possession of property stolen during a robbery-murder and provides a false or unreasonable explanation for that possession, the court may draw an inference of guilt based on circumstantial evidence, provided the proved facts are consistent with guilt and exclude every other reasonable inference. Murder committed in the course of a robbery constitutes an aggravating circumstance under section 47(2)(a)(iii) of the Criminal Law Codification and Reform Act, rendering the accused liable to the death penalty under section 47(4). The doctrine of recent possession applies to cases where theft is an element of the crime, including robbery, and an inference of guilt may be drawn where the possessor cannot explain possession or gives a false or unreasonable explanation as codified in section 123 of the Criminal Law Codification and Reform Act.

The court observed the heinous and cold-blooded nature of the killing, noting that the deceased's body was "literally crushed" by his own motor vehicle and that the accused showed no respect for human life. The court emphasized that this was a violent and senseless killing of an innocent family man who was minding his own business and posed no threat to the accused. The court noted that the accused was motivated by greed. The court quoted from S v Makanyanga regarding the degree of proof required in criminal matters, emphasizing that proof beyond reasonable doubt demands more than merely believing the complainant and disbelieving the accused - it demands objectivity and requires that a defense succeed wherever it appears reasonably possible that it might be true.

This case demonstrates the Zimbabwean courts' application of circumstantial evidence and the doctrine of recent possession in murder cases where direct identification evidence is lacking. It illustrates the application of section 47 of the Criminal Law Codification and Reform Act regarding murder committed in aggravating circumstances, specifically during the commission of a robbery. The case confirms that the death penalty remains available in Zimbabwe for murders committed in aggravating circumstances under section 47(4) of the Act. It also demonstrates the evidentiary value of confirmed warned and cautioned statements in criminal proceedings.