S v MUBVUMBI & ORS 2011 (2) ZLR 251 (H)

Flynote

Criminal law — culpable homicide — assaults upon deceased by multiple accused persons — common purpose — need to establish that each accused acted with common purpose

Criminal procedure — plea — guilty — explanation of charge and elements — purpose — essential to ensure accused understands charge and that he has no defence — multiple accused — need to put specific questions to each accused, not general questions to all of them

Headnote

Section 271(2)(6) of the Criminal Procedure and Evidence Act [Chapter 9:07] requires that a magistrate be satisfied, before he can convict an accused person in proceedings under that section, that the accused understands the charge and the essential elements of the offence and that he admits the elements of the offence and the acts or omissions on which the charge is based as stated in the charge or by the prosecutor. This satisfaction must come from a careful verification of the accused's plea of guilty by confirming it through questioning him on his attitude to the essential elements of the crime charged and ensuring that he has no defence to offer to the crime charged. It is not possible for a magistrate to be so satisfied if he asks general questions to many jointly charged accused persons whose answers can only be "yes" or "no" because of the manner the questions will have been put to them

Nine accused persons were convicted and sentenced on a charge of culpable homicide. The deceased had died from a head injury as a result of assaults, with clenched fists, open hands, booted feet and switches, perpetrated on him at two different places, at different times, by two different groups. All the accused had pleaded guilty. It was not alleged, however, by the

State that the accused had acted with common purpose nor were they so asked by the regional magistrate when tendering their pleas of guilty.

Held, that notwithstanding their pleas of guilty there was insufficient before the court to justify their convictions. It could not be said that the conduct of each of the accused caused the deceased's death, as it was not alleged and accepted that they were acting in common purpose. Where several persons are charged jointly with culpable homicide, there should be a diligent inquiry during the canvassing of the essential elements with each accused, one at a time, to establish which accused used which weapon, where he or she struck the deceased's body and his or her culpability. Each should be questioned to reveal exactly what it was that he was admitting. The purpose of such questioning is not to test the accused person's credibility or to trap him into further admissions, but simply to determine precisely what it is that he is admitting.