S v DUBE 1992 (2) ZLR 338 (S)

Flynote

Criminal law — attempted murder — whether court may convict if only legal (constructive) intention and not actual intention exists

Headnote

Evidence - discrepancies between contents of indictment, summary of State case and preamble to the warned and cautioned statement on the one hand and the evidence of State witnesses on the other hand - whether discrepancies material

In Zimbabwean and South African law it is settled law that the mens rea for an attempt to commit a crime can be either actual intention or legal (constructive) intention. Thus a person can be convicted of attempted murder if he had either actual or legal intention to kill. The approach that legal intention suffices for attempt to commit a crime is deeply rooted and is an eminently logical and reasonable approach. Where there are discrepancies between the contents of the indictment, the summary of the State case and the preamble to the accused's warned and cautioned statement on the one hand and the evidence given by State witnesses the court will examine whether the discrepancies are material and essential and whether the accused has been prejudiced in the conduct of his defence by the discrepancies. Although the summary of the State case should be an accurate summary of what is contained in the police docket and not a figment of the imagination of the policeman who prepares the summary, the summary should not be treated on the same basis as an outline of defence which has been prepared on the instructions of the accused. A State witness has no control over what the policeman compiling the summary decides to include in the summary as being relevant. Therefore the credibility of a State witness will not be destroyed simply because there are apparent conflicts between his testimony and the summary on matters which are not essential to establish the offence alleged. If, however, there are discrepancies between the summary and the evidence of a State witness on matters essential to establish the offence charged, then unless a satisfactory explanation is proffered, it cannot be said that the prosecution has proved its case beyond reasonable doubt.