The State versus Herbert Learnmore Chikiwa and Johane Kamudyariwa and Lawrence Makiwa Makosa and Given Mushore

On 21 September 2013, perpetrators unlawfully entered premises at 40 Northampton Road, Eastlea, Harare (Imperial Security Company offices) by forcing open the door and stole property including a firearm (Llama pistol), ammunition, and other items. In the early hours of 22 September 2013, perpetrators unlawfully entered premises at 5 Wembley Crescent, Eastlea, Harare (K&K Properties offices). When the security guard Collen Julius and his son Innocent Julius (the deceased) detected the intruders and raised alarm, one of the intruders fired shots, killing Innocent Julius with two gunshot wounds to the chest and hand. Property stolen from the first scene was found at the second scene, establishing the same perpetrators committed both offences. Four accused were arrested and charged: Accused 1's firearm matched ballistics from the murder scene; Accused 4's fingerprints were found at both scenes; Accused 2, 3, and 4 made video-recorded confessions/indications. All accused pleaded not guilty, claiming they were elsewhere and that confessions were obtained through torture.

• Whether the identity of the perpetrators of the unlawful entry and murder was established beyond reasonable doubt
• Whether the ballistic evidence linking Accused 1's firearm to the murder scene was reliable
• Whether the fingerprint evidence linking Accused 4 to the crime scenes was admissible and reliable
• Whether the confessions/indications by Accused 2, 3, and 4 were voluntary and reliable
• Whether the alibis provided by the accused were credible
• Application of the common purpose doctrine (now codified in s 196A of the Criminal Law (Codification and Reform) Act) to establish co-perpetrator liability

Count 1 (Unlawful Entry): Accused 1 - Guilty; Accused 2 - Not Guilty, Acquitted; Accused 3 - Not Guilty, Acquitted; Accused 4 - Guilty. Count 2 (Murder): Accused 1 - Guilty; Accused 2 - Not Guilty, Acquitted; Accused 3 - Not Guilty, Acquitted; Accused 4 - Guilty. Accused 1 and 4 were remanded in custody pending sentencing.

The binding legal principles established are: (1) Under the common purpose doctrine (s 196A), co-perpetrators in a joint criminal enterprise are liable for murder committed by any member if they foresaw the possibility of death and persisted in the enterprise, regardless of who fired the fatal shot; (2) Scientific evidence such as ballistics and fingerprint analysis, when presented by qualified experts and unchallenged by contrary expert evidence, establishes facts with sufficient certainty to prove guilt beyond reasonable doubt; (3) Confession evidence, even if formally voluntary, must be assessed for reliability and weight - deficiencies such as unexplained gaps in video recordings, police leading suspects to scenes, lack of specific detail, and absence of independent corroboration may render confessions insufficient to sustain conviction; (4) Material and deliberate lies by an accused about fundamental aspects of their defense (such as whereabouts and possession of key evidence like weapons) support rejection of the defense where there is no possibility of honest mistake; (5) The standard of proof beyond reasonable doubt does not require exploration of fanciful possibilities not grounded in the proved facts, but requires consideration of all evidence holistically to determine if there is any reasonable possibility the accused might be innocent.

The court made non-binding observations including: (1) While acknowledging that people occasionally make false confessions for various reasons (citing S v Khumalo), courts must guard against convicting on unreliable confession evidence; (2) The fact that some portions of video recordings are missing or inaudible does not automatically render them inadmissible (citing S v Tsvangirayi), but such deficiencies affect the weight of evidence; (3) Police decisions to proceed with important procedures like video-recorded indications despite doubts about equipment (such as camera batteries) are questionable and diminish the reliability of resulting evidence; (4) Medical letters documenting injuries alleged to result from police torture must contain sufficient detail to be given weight - general statements of injuries without context are unhelpful; (5) The court noted, without deciding, the unconvincing police explanation for pausing video recordings during indications, suggesting that indications could and should have been postponed until proper equipment was available; (6) The court observed that ATM withdrawals shown on bank statements do not conclusively prove the account holder's location, as withdrawals can be made by others, and noted the possibility that such withdrawals might be deliberately contrived to create a false alibi.

This case is significant in Zimbabwean criminal law for: (1) Demonstrating the application of the codified common purpose doctrine under s 196A of the Criminal Law (Codification and Reform) Act, establishing that co-perpetrators in a joint criminal enterprise are liable for murder even if the actual shooter is not definitively identified, provided they foresaw the possibility of death; (2) Establishing high evidentiary standards for the reliability and weight of confession evidence, particularly video-recorded indications - holding that deficiencies such as unexplained pauses in recordings, police leading suspects to crime scenes, and lack of corroborating evidence can render confessions insufficient for conviction despite formal voluntariness; (3) Affirming the admissibility and reliability of scientific evidence, particularly ballistics (100% accuracy in matching firearms to spent cartridges) and fingerprint analysis (100% accuracy in identification); (4) Illustrating the proper application of the Difford standard of proof beyond reasonable doubt and the treatment of false alibis - material, deliberate lies about whereabouts and key evidence (like firearm location) can support rejection of an accused's entire defense when the lies relate to the bases of the defense; (5) Reaffirming that the maxims "falsus in uno, falsus in omnibus" and "semel mentitus, semper mentitur" are not part of South African/Zimbabwean law, but that deliberate lies on material points may lead to rejection of testimony where there is no room for honest mistake.