S v SIBANDA 1992 (2) ZLR 438 (S)

Flynote

Evidence — criminal case — extra — curial statement only admissible against its maker — two exceptions only to rule

Criminal procedure — misdirection — appeal court must determine whether misdirection resulted in substantial miscarriage of justice

Criminal procedure (sentence) — murders committed in course of robberies

Headnote

During the course of a robbery which he had committed with an accomplice, the appellant had allegedly killed the deceased. In finding the appellant guilty of murder, one point which the trial judge had taken into account was that, though he warned and cautioned the appellant and indications of the appellant's accomplice were not admissible against the appellant, these nevertheless confirmed the essential truthfulness of the main State witness in regard to the presence of the two men and their involvement in the robbery.

Held, that the general rule is that an extra-curial statement of a person is admissible only against its maker. This rule is subject to two exceptions. An extra-curial statement may be admitted as evidence against a co-accused implicated thereby

• where the co-accused by his words or conduct accepts the truth of his statement so as to make all or part of it a statement of his own;
• in cases of conspiracy, where statements made by one of two conspirators made in execution or furtherance of a common design are admissible in evidence against any other party to the conspiracy.

Held, further, that in the present case neither of the exceptions to the rule applied and the judge had misdirected himself in considering the extra-curial statement to be confirmatory of the truthfulness of the State witness's testimony in respect of the appellant. The extra-curial statement was pure hearsay as regards the appellant and could not be used to corroborate the testimony of the State witness against the appellant.

Held, however, that the misdirection of the trial court in this regard had not resulted in a miscarriage of justice and the conviction was properly based. There was ample evidence, apart from the point wrongly taken into account as a result of the misdirection, establishing the guilt of the appellant.

Held, as regards extenuation, that no extenuating circumstances could be found on the facts. The appeal court drew attention to the frequent warnings it had given in the past that, in the absence of weighty extenuating circumstances, a murder committed in the course of a robbery would attract the death penalty. The public had to be protected against robberies resulting in death, which were disturbingly prevalent.