State v Hodhera (331 of 2024) [2024] ZWHHC 331 (19 July 2024)

5 HH 331 - 24 CRB 71/23 THE STATE versus SIMEON HODHERA HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, 17 November 2023 & 19 July 2024 Assessors: Mr Mpofu Mr Barwa Criminal trial Mr D. H. Chesa, for the State Advocate T. Zhuwarara, for the accused MANYANGADZE J: The accused was charged with the crime of murder, as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It is alleged that on 26 September 2019, at Ruware Shopping Centre, Epworth, Harare, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility, caused the death of Bon Baker (“the deceased”) by assaulting him with open hands, booted feet and shamboks all over the body. Briefly outlined, the allegations are that on the day in question, around 3.00 am, the deceased and his friend passed through Ruware Shopping Centre as they were coming from a beer drink going home. A security guard who spotted them suspected them to be thieves and shouted “mbavha! mbavha!” meaning “Thief! Thief!” This drew the attention of the accused and his accomplices who are still at large, who then rushed to the scene. They started assaulting the deceased with open hands, booted feet and shamboks all over the body. They also poured some water on his body and left him tied to a parked car until daybreak. The deceased succumbed to the injuries he sustained later the same day, around 6 pm. Before tendering his plea to the charge, the accused filed an application to have the indictment quashed. The application was made in terms of sections 178 and 179 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It is necessary, from the outset, to look at the definition of murder and the formulation of the charge done by the prosecution. Section 47 (1) of the Criminal Law Code defines murder in the following terms: “47 Murder (1) Any person who causes the death of another person (a) intending to kill the other person; or (b) realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The charge in this matter is formulated as follows: “In that on the 26th day of September 2019 and at Ruware Shopping Centre, Chinamano Extension, Epworth, Harare, Simeon Hodhera unlawfully and with intent to kill or realizing that there was a real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility, caused the death of DON BAKER by assaulting him with open hands, booted feet and sjamboks all over the body.” The accused avers that the indictment is fatally defective and will prejudice him in his defence. Advocate Zhuwarara, on behalf of the accused, contended that the indictment conflates two distinct possibilities contained in s 47 (1) of the Criminal Law Code. In terms of s 47 (1)(a), the accused would have acted with intent to cause death. Under s 47 (1)(b), the accused would have acted recklessly realising that there is a real risk or possibility that his conduct may cause death. This contention is clearly reflected in paragraph 3 of the accused’s notice to quash the indictment, wherein is stated: “Section 47 (1) (a) of the Criminal Code is actuated where an Accused is alleged to have intentionally caused the death of (sic) person. On the other hand, 47 (1)(a) (sic) delimits a different allegation wherein an Accused is alleged to have caused the death of another recklessly. The later position relates to constructive intent.” Advocate Zhuwarara further contends that the use of the disjunctive term “or” means that paragraphs (a) and (b) cannot be combined. The accused cannot be charged with both paragraphs. The State must select in terms of which paragraph it is proceeding and the accused be asked to plead accordingly. In this regard, the court was referred to the cases of S v Pretorius (1) 1969 (1) SA 235 (T), Colonial Treasurer v Great Eastern Collieries Ltd 1904 TS 719. In S v Pretorius, it was held, at p237 F-G. that: “…It appears to me that ‘or’ must always be construed in its ordinary and proper sense as a disjunctive particle signifying a substitution or an alternative….” Reference was also made to the case of S v Mwonzora 2016 (2) ZLR 869 where it was emphasized that a charge must be formulated in clear language, with sufficient detail to enable the accused to properly plead to it. The court stated, at p 874-5: “The object of a charge is to inform the accused person in sufficient detail and clear language of the offence with which he or she is charged to enable him or her to consider the accusation. The charge must state the essential elements of the offence with sufficient precision and provide sufficient particulars of the acts of or omission alleged to have been committed which constitute the criminal offence. The accused must not be left to guess or speculate as to the true nature of the offence.” In the instant case, argues the defence, the formulation is improper, confusing and prejudicial. The accused is confused as to whether he should proffer a defence focused on the intent to kill or on recklessness. An amalgamation of s 47 (1)(a) and s 47 (1)(b) postulates two conflicting positions and renders the charge defective beyond amendment. The accused therefore moves that the indictment be quashed. In its response to the defence’s application, the State concedes that the formulation of the indictment is improper, in that it combines different states of mind as provided for in paragraphs (a) and (b) of subsection (1) of s 47. Thus, the State is agreeing with the defence that the accused should have been charged under paragraph (a) or (b), not both. This concession is captured in paragraph 3 of the State’s submissions, in which it is stated: “A reading of the indictment shows that the two options provided by s 47 (1) CLCRA were bundled together. It is admitted that the interpretation accorded the conjunction “or” between options (a) or (b) by the accused is correct. Further, it is admitted that the two options in defining the crime of murder as envisaged in the enactment require two different forms of the criminal state of mind. One cannot have an intention to kill and at the same time have a realisation of a real risk or possibility of causing death. What falls for consideration is whether to conflate the two possibilities is proper, whether it prejudices the accused in his defence and, whether the purported defect cannot be cured.” The State, however, contends that the indictment is not incurably defective. It further contends that it does not prejudice the accused in the formulation of his defence. Mr Chesa, on behalf of the State, avers, in paragraph 5 of the State’s response, that the indictment ought to be read together with the summary of the State’s case provided to the accused in terms of s 66 (6)(a) of the Criminal Procedure and Evidence Act. In this regard, the following submissions are made, in paragraph 5: “It is important to note that in determining whether the indictment is sufficiently particularised, the indictment has to be read together with the summary of the State case as provided by s 66 (6)(a) CP & EA. The document contains a list of all the witnesses the State proposes to call at trial and a summary of the evidence which each witness will give, sufficiently to inform the accused of all the material facts upon which the State relies.” Mr Chesa further contends that an accused must not escape trial on the basis of a mere technicality. Failure to mention certain sections of the legislative provisions concerned should not be a basis to vitiate an indictment, summons or charge. For this proposition he relied on s 146 (5) of the Criminal Procedure and Evidence Act. In fact, the whole of s 146 of the Criminal Procedure and Evidence Act deals with the clarity and sufficiency of an indictment or charge. Section 146 reads as follows: “146 Essentials of indictment, summons or charge (1) Subject to this Act and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge. (2) Subject to this Act and except as otherwise provided in any other enactment, the following provisions shall apply to criminal proceedings in any court, that is to say— (a) the description of any offence in the words of any enactment creating the offence, or in similar words, shall be sufficient; and (b) any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the enactment creating the offence, may be proved by the accused, but need not be specified or negatived in the indictment, summons or charge, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution. (3) Where any of the particulars referred to in this section are unknown to the prosecutor, it shall be sufficient to state that fact in the indictment, summons or charge. (4) Where a person is charged with a crime listed in the first column of the Second Schedule to the Criminal Law Code, it shall be sufficient to charge him or her with that crime by its name only. [Subsection inserted by section 282 of Act 23 of 2004] (5) No indictment, summons or charge alleging the commission of a crime mentioned in subsection (4) shall be held to be defective on account of a failure to mention the section of the Criminal Law Code under which the crime is set forth.” Reference was made to the case of Kasukuwere v Mujaya & Ors HH 562/19, where the import of s 146 was considered. Emphasis was placed more on what is reasonable than absolute clarity in determining the sufficiency of a charge. Chitapi J stated, at p2: “The framing of a charge is not a walk in the path. One should start by making the general jurisprudential principle that good laws must be clear and unambiguous. By equal measure, a charge must be clear and unambiguous. In other words, the accused person must not be left unsure or unclear as to the case that he or she must answer to. If the basis of the charge is an act of commission or omission, the charge should be clear enough for the accused to appreciate the conduct, act or omission which he or/she is alleged to have committed or omitted to do and the fact that the act of commission or omission is criminalized. Reasonable, rather than absolute clarity is sufficient to validate a charge. By this, I do no mean to condone ambiguity in the framing of a charge. The charge must at least contain sufficient details to fully and sufficiently inform the accused of the criminal wrong alleged against such accused. The charge from a basic understanding must address or allege “what did the accused do or not do, where and when? Why or how is it alleged that the accused’s conduct constitutes an offence?” Mr Chesa has called upon the court not to easily resort to the course of action urged by the defence. He avers that quashing of criminal charges, though it is a power reposed in the court, is one that should be exercised most sparingly. This should only be done if it is clear the accused will be adversely affected in the conduct of his defence. In State v Gandawa & Ors HH 478/18, the court highlighted the fact that an indictment may be quashed if it is calculated to prejudice the accused. In that case, Chitapi J stated: “As regards the application to quash the indictment based on s 178 of the Criminal Procedure & Evidence Act, it is apparent from the clear wording of the section, that the motion to quash an indictment, summons or charge is premised on the ground that the same is “calculated to prejudice or embarrass” the accused in his defence. The rationale for this law lies in the right of an accused person to a fair trial, the presumption of innocence until proven guilty and the recognition that unless the contrary is indicated by law, no onus rests upon an accused person to prove his innocence nor to assist the State to prove its case against the accused. The indictment, charge or summons will be quashed if it is “calculated to,” and proceeding on it as framed will adversely affect the accused’s ability to properly and effectively defend himself or herself. The onus to show that the impugned indictment is calculated to prejudice or embarrass the accused in his defence rests upon the accused and it is discharged on a balance of probabilities. Further, the court has a discretion where the accused discharges the onus aforesaid to either quash the indictment, refuse the application or order that the indictment, summons or charge should be amended in a particular manner which appears to the court to be just.” Mr Chesa implored the court to allow the State an opportunity to amend the indictment to specify which of the two options provided in s 47 (1) is preferred against the accused. To this end, he attached an amended draft indictment, which is in line with s 47 (1)(b) of the Criminal Law Code. The draft reads as follows: “In that on the 26th day of September 2019 and at Ruware Shopping Centre, Chinamano Extension, Epworth, Harare, Simeon Hodhera unlawfully and realising that there was a real risk or possibility that his conduct may cause death, and continuing to engage in that conduct despite the risk or possibility, caused the death of BON BAKER by assaulting him with open hands, booted feet and sjambok all over the body thereby causing injuries from which the said Bon Baker died.” Thus, in the amended draft indictment, the State has confined itself to paragraph (b) and has abandoned paragraph (a). It prays that the court allows the amendment, so that the trial can proceed based on the amended indictment. The defence contends that this approach is improper. The defect complained of is incurable. The State cannot seek to amend a nullity. The indictment must simply be quashed. In this regard, Advocate Zhuwarara told the court during oral submissions: “The intended amendment does not cure the defect. The objection was that s 47 has not been particularised. When an individual is charged with murder, it is incumbent on the State to tell us – Is it s 47 (1)(a) or s 47 (1)(b)? Those two sections are different. One speaks to intent, the other to conduct after realisation that someone might die. The legal principles are different. Our law is now very clear. You cannot amend a nullity. Where the document itself contains a breach of statute, no amendment can be granted. There are a number of authorities that where a document breaches statute, the court has no discretion because the defect is incurable. That makes the indictment defective in the eyes of statute. A nullity cannot be amended, Jason v Avocalos 1993 (1) ZLR 216, at 220. Once the State accepted that the indictment is defective, it has put itself in a corner. The indictment is the document which allows the accused to prepare for trial.” The gravamen of the defence’s contention is that the indictment is not clear and precise. It is prejudicial to the accused, who is unable to properly plead to the charge and prepare his defence. It is incurably defective and must be quashed. I am unable to uphold the defence’s contention. I say so notwithstanding the State’s concession. It is my respectful view that the concession was not properly made. Section 47(1) defines one offence, which is murder. It does not define two different offences. The subsections in contention, (a) and (b), merely describe the different forms of intention or state of mind under which the same offence can be committed. The terms previously used under the common law are actual intention or constructive intention, also known as legal intention. They do not present alternative charges as contended by the defence. This may properly be viewed more as a two-rung approach or enquiry, under the same charge, than an election of one or the other charge. The enquiry would be: “Did the accused intend to cause the death of the deceased? If the answer is yes, the accused is found guilty of murder as envisaged in paragraph (a) If the answer is no, the next rung of the enquiry would be- Did the accused realise there is a real risk or possibility that his or her conduct may cause death, and continued to engage in that conduct despite the risk or possibility? If the answer is yes, the accused is found guilty of murder as envisaged in paragraph (b).” It is important to note that the phrase “shall be guilty of murder” is placed at the end of s 47 (1), thus making it applicable to either paragraph (a) or (b). The accused is found guilty of murder in either instance. Ultimately, the distinction between the two paragraphs pales into insignificance. What s 47 (1) has done, in my view, is encapsulate all the essential elements of the crime of murder under one section. To possibly avoid clumsy and cumbersome drafting, the legislature, in its wisdom, delineated these elements under paragraphs (a) and (b). If it saw the offences as different, it could have created separate sections altogether, as it did with culpable homicide, which is separately defined in s 49. In Tafadzwa Watson Mapfoche v The State SC 84/21, Makarau Ja (as she then was) considered the question of whether the accused was properly convicted of murder under s 47 (1). The facts in that case were that the appellant and his accomplice robbed the deceased, a taxi driver, of his motor vehicle along the Chirundu – Harare highway. It was the finding of the court that they then threw him or his remains down a 20 m steep slope in a game park area which was infested with wild animals. Only his torn and blood-stained clothes were found. His body was never found. In upholding their conviction for murder, the learned judge of appeal stated, at p 7: “The only reasonable inference that one draws from the starting point of the spoor down the slope is that the deceased or his remains were thrown 20 metres down the slope. It is therefore my finding that, beyond reasonable doubt, the deceased or his remains were thrown 20 metres down the steep slope. Quite apart from the finding that I make above and in addition thereto, there is no disputing the fact that, in all that they did on the night in question, the appellant and his co- accused must have realised that there was a real risk or possibility that their conduct might cause the death of the deceased and, notwithstanding that risk or possibility, continued with such conduct.” (underlining added) The basis of the conviction was what was previously described as “constructive intention” under the common law. In the Criminal Law Code, this would fall under paragraph (b) of s 47 (1). In the High Court, the appellant and his accomplices had been convicted of murder with “actual intent”. This would fall under paragraph (a) of s 47 (1). The learned judge of appeal’s remarks on this distinction i.e. actual intent and constructive intent, now defined in paragraph (a) and (b), are instructive. She stated, at pp 9-10: “Thus, under the section, it is not necessary, as was the position under the common law, to find the accused guilty of murder with either actual intent or with constructive intent. Put differently, it is not necessary under the Code to specify that the accused has been convicted under 47(1)(a) or (b). Killing or causing the death of another person with either of the two intentions is murder as defined by the section. It further appears to me that the distinction between a conviction of murder with actual intent and murder with constructive intent, which under the common law greatly influenced the court in assessing sentence is no longer as significant or material as it was. The sentence to be imposed for murder, committed with the intent specified in s 47(1)(a) or (b), has also been codified as I shall show below.” (underlining added) What is clearly coming out of these remarks is that when convicting an accused person of murder, it is not necessary for the court to specify that the accused has been convicted under s 47(a) or s 47 (b). The offence remains murder as defined in s 47 (1). Though the remarks were made in respect of the propriety of the conviction, in my view, they apply with equal force to the charge. This is so because a conviction emanates from a charge. It is the charge that creates the offence. Evidence is led based on the charge or charges preferred. If the evidence proves the charge, then the accused is accordingly convicted. In casu, the charge is murder, as defined in s 47 (1) of the Criminal Law Code. The requisite mens rea can be either of the two forms i.e. actual or constructive intention under the common law, which, in the Criminal Law Code, is either paragraph (a) or (b), under s 47 (1). It is wrong, in my considered view, and would unduly and unnecessarily hamper or stifle prosecution to tie down the State to one form of state of mind when it formulates a charge for murder. As to what form is eventually proved is a matter of evidence. That is something that will be established by the evidence adduced. There is no violation of the accused’s right to a fair trial for murder if both forms of intention are alleged in the same charge. There is also no violation of statutory provisions. The two forms of intention, on the one hand, constitute the requisite mental element for the same offence, with the assault or whatever means by which death is caused, on the other hand, constituting the physical element. In the circumstances, I find that the charge, as presently formulated, is not defective. If anything, it clearly and comprehensively sets out the elements for the crime of murder to which the accused person is being asked to plead. The application to quash the charge is without merit and cannot be upheld. In the result, it is ordered that: The application to quash the indictment be and is hereby dismissed. Manyangadze J:………………………………. Zuze Law Chambers, accused’s legal practitioners National Prosecuting Authority, the State’s legal practitioners 5 HH 331 - 24 CRB 71/23 5 HH 331 - 24 CRB 71/23 THE STATE versus SIMEON HODHERA HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, 17 November 2023 & 19 July 2024 Assessors: Mr Mpofu Mr Barwa Criminal trial Mr D. H. Chesa, for the State Advocate T. Zhuwarara, for the accused MANYANGADZE J: The accused was charged with the crime of murder, as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It is alleged that on 26 September 2019, at Ruware Shopping Centre, Epworth, Harare, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility, caused the death of Bon Baker (“the deceased”) by assaulting him with open hands, booted feet and shamboks all over the body. Briefly outlined, the allegations are that on the day in question, around 3.00 am, the deceased and his friend passed through Ruware Shopping Centre as they were coming from a beer drink going home. A security guard who spotted them suspected them to be thieves and shouted “mbavha! mbavha!” meaning “Thief! Thief!” This drew the attention of the accused and his accomplices who are still at large, who then rushed to the scene. They started assaulting the deceased with open hands, booted feet and shamboks all over the body. They also poured some water on his body and left him tied to a parked car until daybreak. The deceased succumbed to the injuries he sustained later the same day, around 6 pm. Before tendering his plea to the charge, the accused filed an application to have the indictment quashed. The application was made in terms of sections 178 and 179 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It is necessary, from the outset, to look at the definition of murder and the formulation of the charge done by the prosecution. Section 47 (1) of the Criminal Law Code defines murder in the following terms: “47 Murder (1) Any person who causes the death of another person (a) intending to kill the other person; or (b) realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The charge in this matter is formulated as follows: “In that on the 26th day of September 2019 and at Ruware Shopping Centre, Chinamano Extension, Epworth, Harare, Simeon Hodhera unlawfully and with intent to kill or realizing that there was a real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility, caused the death of DON BAKER by assaulting him with open hands, booted feet and sjamboks all over the body.” The accused avers that the indictment is fatally defective and will prejudice him in his defence. Advocate Zhuwarara, on behalf of the accused, contended that the indictment conflates two distinct possibilities contained in s 47 (1) of the Criminal Law Code. In terms of s 47 (1)(a), the accused would have acted with intent to cause death. Under s 47 (1)(b), the accused would have acted recklessly realising that there is a real risk or possibility that his conduct may cause death. This contention is clearly reflected in paragraph 3 of the accused’s notice to quash the indictment, wherein is stated: “Section 47 (1) (a) of the Criminal Code is actuated where an Accused is alleged to have intentionally caused the death of (sic) person. On the other hand, 47 (1)(a) (sic) delimits a different allegation wherein an Accused is alleged to have caused the death of another recklessly. The later position relates to constructive intent.” Advocate Zhuwarara further contends that the use of the disjunctive term “or” means that paragraphs (a) and (b) cannot be combined. The accused cannot be charged with both paragraphs. The State must select in terms of which paragraph it is proceeding and the accused be asked to plead accordingly. In this regard, the court was referred to the cases of S v Pretorius (1) 1969 (1) SA 235 (T), Colonial Treasurer v Great Eastern Collieries Ltd 1904 TS 719. In S v Pretorius, it was held, at p237 F-G. that: “…It appears to me that ‘or’ must always be construed in its ordinary and proper sense as a disjunctive particle signifying a substitution or an alternative….” Reference was also made to the case of S v Mwonzora 2016 (2) ZLR 869 where it was emphasized that a charge must be formulated in clear language, with sufficient detail to enable the accused to properly plead to it. The court stated, at p 874-5: “The object of a charge is to inform the accused person in sufficient detail and clear language of the offence with which he or she is charged to enable him or her to consider the accusation. The charge must state the essential elements of the offence with sufficient precision and provide sufficient particulars of the acts of or omission alleged to have been committed which constitute the criminal offence. The accused must not be left to guess or speculate as to the true nature of the offence.” In the instant case, argues the defence, the formulation is improper, confusing and prejudicial. The accused is confused as to whether he should proffer a defence focused on the intent to kill or on recklessness. An amalgamation of s 47 (1)(a) and s 47 (1)(b) postulates two conflicting positions and renders the charge defective beyond amendment. The accused therefore moves that the indictment be quashed. In its response to the defence’s application, the State concedes that the formulation of the indictment is improper, in that it combines different states of mind as provided for in paragraphs (a) and (b) of subsection (1) of s 47. Thus, the State is agreeing with the defence that the accused should have been charged under paragraph (a) or (b), not both. This concession is captured in paragraph 3 of the State’s submissions, in which it is stated: “A reading of the indictment shows that the two options provided by s 47 (1) CLCRA were bundled together. It is admitted that the interpretation accorded the conjunction “or” between options (a) or (b) by the accused is correct. Further, it is admitted that the two options in defining the crime of murder as envisaged in the enactment require two different forms of the criminal state of mind. One cannot have an intention to kill and at the same time have a realisation of a real risk or possibility of causing death. What falls for consideration is whether to conflate the two possibilities is proper, whether it prejudices the accused in his defence and, whether the purported defect cannot be cured.” The State, however, contends that the indictment is not incurably defective. It further contends that it does not prejudice the accused in the formulation of his defence. Mr Chesa, on behalf of the State, avers, in paragraph 5 of the State’s response, that the indictment ought to be read together with the summary of the State’s case provided to the accused in terms of s 66 (6)(a) of the Criminal Procedure and Evidence Act. In this regard, the following submissions are made, in paragraph 5: “It is important to note that in determining whether the indictment is sufficiently particularised, the indictment has to be read together with the summary of the State case as provided by s 66 (6)(a) CP & EA. The document contains a list of all the witnesses the State proposes to call at trial and a summary of the evidence which each witness will give, sufficiently to inform the accused of all the material facts upon which the State relies.” Mr Chesa further contends that an accused must not escape trial on the basis of a mere technicality. Failure to mention certain sections of the legislative provisions concerned should not be a basis to vitiate an indictment, summons or charge. For this proposition he relied on s 146 (5) of the Criminal Procedure and Evidence Act. In fact, the whole of s 146 of the Criminal Procedure and Evidence Act deals with the clarity and sufficiency of an indictment or charge. Section 146 reads as follows: “146 Essentials of indictment, summons or charge (1) Subject to this Act and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge. (2) Subject to this Act and except as otherwise provided in any other enactment, the following provisions shall apply to criminal proceedings in any court, that is to say— (a) the description of any offence in the words of any enactment creating the offence, or in similar words, shall be sufficient; and (b) any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the enactment creating the offence, may be proved by the accused, but need not be specified or negatived in the indictment, summons or charge, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution. (3) Where any of the particulars referred to in this section are unknown to the prosecutor, it shall be sufficient to state that fact in the indictment, summons or charge. (4) Where a person is charged with a crime listed in the first column of the Second Schedule to the Criminal Law Code, it shall be sufficient to charge him or her with that crime by its name only. [Subsection inserted by section 282 of Act 23 of 2004] (5) No indictment, summons or charge alleging the commission of a crime mentioned in subsection (4) shall be held to be defective on account of a failure to mention the section of the Criminal Law Code under which the crime is set forth.” Reference was made to the case of Kasukuwere v Mujaya & Ors HH 562/19, where the import of s 146 was considered. Emphasis was placed more on what is reasonable than absolute clarity in determining the sufficiency of a charge. Chitapi J stated, at p2: “The framing of a charge is not a walk in the path. One should start by making the general jurisprudential principle that good laws must be clear and unambiguous. By equal measure, a charge must be clear and unambiguous. In other words, the accused person must not be left unsure or unclear as to the case that he or she must answer to. If the basis of the charge is an act of commission or omission, the charge should be clear enough for the accused to appreciate the conduct, act or omission which he or/she is alleged to have committed or omitted to do and the fact that the act of commission or omission is criminalized. Reasonable, rather than absolute clarity is sufficient to validate a charge. By this, I do no mean to condone ambiguity in the framing of a charge. The charge must at least contain sufficient details to fully and sufficiently inform the accused of the criminal wrong alleged against such accused. The charge from a basic understanding must address or allege “what did the accused do or not do, where and when? Why or how is it alleged that the accused’s conduct constitutes an offence?” Mr Chesa has called upon the court not to easily resort to the course of action urged by the defence. He avers that quashing of criminal charges, though it is a power reposed in the court, is one that should be exercised most sparingly. This should only be done if it is clear the accused will be adversely affected in the conduct of his defence. In State v Gandawa & Ors HH 478/18, the court highlighted the fact that an indictment may be quashed if it is calculated to prejudice the accused. In that case, Chitapi J stated: “As regards the application to quash the indictment based on s 178 of the Criminal Procedure & Evidence Act, it is apparent from the clear wording of the section, that the motion to quash an indictment, summons or charge is premised on the ground that the same is “calculated to prejudice or embarrass” the accused in his defence. The rationale for this law lies in the right of an accused person to a fair trial, the presumption of innocence until proven guilty and the recognition that unless the contrary is indicated by law, no onus rests upon an accused person to prove his innocence nor to assist the State to prove its case against the accused. The indictment, charge or summons will be quashed if it is “calculated to,” and proceeding on it as framed will adversely affect the accused’s ability to properly and effectively defend himself or herself. The onus to show that the impugned indictment is calculated to prejudice or embarrass the accused in his defence rests upon the accused and it is discharged on a balance of probabilities. Further, the court has a discretion where the accused discharges the onus aforesaid to either quash the indictment, refuse the application or order that the indictment, summons or charge should be amended in a particular manner which appears to the court to be just.” Mr Chesa implored the court to allow the State an opportunity to amend the indictment to specify which of the two options provided in s 47 (1) is preferred against the accused. To this end, he attached an amended draft indictment, which is in line with s 47 (1)(b) of the Criminal Law Code. The draft reads as follows: “In that on the 26th day of September 2019 and at Ruware Shopping Centre, Chinamano Extension, Epworth, Harare, Simeon Hodhera unlawfully and realising that there was a real risk or possibility that his conduct may cause death, and continuing to engage in that conduct despite the risk or possibility, caused the death of BON BAKER by assaulting him with open hands, booted feet and sjambok all over the body thereby causing injuries from which the said Bon Baker died.” Thus, in the amended draft indictment, the State has confined itself to paragraph (b) and has abandoned paragraph (a). It prays that the court allows the amendment, so that the trial can proceed based on the amended indictment. The defence contends that this approach is improper. The defect complained of is incurable. The State cannot seek to amend a nullity. The indictment must simply be quashed. In this regard, Advocate Zhuwarara told the court during oral submissions: “The intended amendment does not cure the defect. The objection was that s 47 has not been particularised. When an individual is charged with murder, it is incumbent on the State to tell us – Is it s 47 (1)(a) or s 47 (1)(b)? Those two sections are different. One speaks to intent, the other to conduct after realisation that someone might die. The legal principles are different. Our law is now very clear. You cannot amend a nullity. Where the document itself contains a breach of statute, no amendment can be granted. There are a number of authorities that where a document breaches statute, the court has no discretion because the defect is incurable. That makes the indictment defective in the eyes of statute. A nullity cannot be amended, Jason v Avocalos 1993 (1) ZLR 216, at 220. Once the State accepted that the indictment is defective, it has put itself in a corner. The indictment is the document which allows the accused to prepare for trial.” The gravamen of the defence’s contention is that the indictment is not clear and precise. It is prejudicial to the accused, who is unable to properly plead to the charge and prepare his defence. It is incurably defective and must be quashed. I am unable to uphold the defence’s contention. I say so notwithstanding the State’s concession. It is my respectful view that the concession was not properly made. Section 47(1) defines one offence, which is murder. It does not define two different offences. The subsections in contention, (a) and (b), merely describe the different forms of intention or state of mind under which the same offence can be committed. The terms previously used under the common law are actual intention or constructive intention, also known as legal intention. They do not present alternative charges as contended by the defence. This may properly be viewed more as a two-rung approach or enquiry, under the same charge, than an election of one or the other charge. The enquiry would be: “Did the accused intend to cause the death of the deceased? If the answer is yes, the accused is found guilty of murder as envisaged in paragraph (a) If the answer is no, the next rung of the enquiry would be- Did the accused realise there is a real risk or possibility that his or her conduct may cause death, and continued to engage in that conduct despite the risk or possibility? If the answer is yes, the accused is found guilty of murder as envisaged in paragraph (b).” It is important to note that the phrase “shall be guilty of murder” is placed at the end of s 47 (1), thus making it applicable to either paragraph (a) or (b). The accused is found guilty of murder in either instance. Ultimately, the distinction between the two paragraphs pales into insignificance. What s 47 (1) has done, in my view, is encapsulate all the essential elements of the crime of murder under one section. To possibly avoid clumsy and cumbersome drafting, the legislature, in its wisdom, delineated these elements under paragraphs (a) and (b). If it saw the offences as different, it could have created separate sections altogether, as it did with culpable homicide, which is separately defined in s 49. In Tafadzwa Watson Mapfoche v The State SC 84/21, Makarau Ja (as she then was) considered the question of whether the accused was properly convicted of murder under s 47 (1). The facts in that case were that the appellant and his accomplice robbed the deceased, a taxi driver, of his motor vehicle along the Chirundu – Harare highway. It was the finding of the court that they then threw him or his remains down a 20 m steep slope in a game park area which was infested with wild animals. Only his torn and blood-stained clothes were found. His body was never found. In upholding their conviction for murder, the learned judge of appeal stated, at p 7: “The only reasonable inference that one draws from the starting point of the spoor down the slope is that the deceased or his remains were thrown 20 metres down the slope. It is therefore my finding that, beyond reasonable doubt, the deceased or his remains were thrown 20 metres down the steep slope. Quite apart from the finding that I make above and in addition thereto, there is no disputing the fact that, in all that they did on the night in question, the appellant and his co- accused must have realised that there was a real risk or possibility that their conduct might cause the death of the deceased and, notwithstanding that risk or possibility, continued with such conduct.” (underlining added) The basis of the conviction was what was previously described as “constructive intention” under the common law. In the Criminal Law Code, this would fall under paragraph (b) of s 47 (1). In the High Court, the appellant and his accomplices had been convicted of murder with “actual intent”. This would fall under paragraph (a) of s 47 (1). The learned judge of appeal’s remarks on this distinction i.e. actual intent and constructive intent, now defined in paragraph (a) and (b), are instructive. She stated, at pp 9-10: “Thus, under the section, it is not necessary, as was the position under the common law, to find the accused guilty of murder with either actual intent or with constructive intent. Put differently, it is not necessary under the Code to specify that the accused has been convicted under 47(1)(a) or (b). Killing or causing the death of another person with either of the two intentions is murder as defined by the section. It further appears to me that the distinction between a conviction of murder with actual intent and murder with constructive intent, which under the common law greatly influenced the court in assessing sentence is no longer as significant or material as it was. The sentence to be imposed for murder, committed with the intent specified in s 47(1)(a) or (b), has also been codified as I shall show below.” (underlining added) What is clearly coming out of these remarks is that when convicting an accused person of murder, it is not necessary for the court to specify that the accused has been convicted under s 47(a) or s 47 (b). The offence remains murder as defined in s 47 (1). Though the remarks were made in respect of the propriety of the conviction, in my view, they apply with equal force to the charge. This is so because a conviction emanates from a charge. It is the charge that creates the offence. Evidence is led based on the charge or charges preferred. If the evidence proves the charge, then the accused is accordingly convicted. In casu, the charge is murder, as defined in s 47 (1) of the Criminal Law Code. The requisite mens rea can be either of the two forms i.e. actual or constructive intention under the common law, which, in the Criminal Law Code, is either paragraph (a) or (b), under s 47 (1). It is wrong, in my considered view, and would unduly and unnecessarily hamper or stifle prosecution to tie down the State to one form of state of mind when it formulates a charge for murder. As to what form is eventually proved is a matter of evidence. That is something that will be established by the evidence adduced. There is no violation of the accused’s right to a fair trial for murder if both forms of intention are alleged in the same charge. There is also no violation of statutory provisions. The two forms of intention, on the one hand, constitute the requisite mental element for the same offence, with the assault or whatever means by which death is caused, on the other hand, constituting the physical element. In the circumstances, I find that the charge, as presently formulated, is not defective. If anything, it clearly and comprehensively sets out the elements for the crime of murder to which the accused person is being asked to plead. The application to quash the charge is without merit and cannot be upheld. In the result, it is ordered that: The application to quash the indictment be and is hereby dismissed. Manyangadze J:………………………………. Zuze Law Chambers, accused’s legal practitioners National Prosecuting Authority, the State’s legal practitioners