Once the legal practitioner has informed the prosecutor dealing with the case that he is representing X, the prosecutor will normally provide the legal practitioner with a copy of the charge and of any warned and cautioned statement made by X. If this has not been done, the legal practitioner should request that he be supplied with these documents.
The legal practitioner should also ask the prosecutor for a list of the witnesses the State intends to call to give evidence at the trial. A defence lawyer is not allowed to interview a State witness before the witness gives evidence, so it is important to know who the witnesses are going to be.
The first task is to understand what the case against X is. The charge should be critically examined to see if it is legally competent and that adequate details have been provided to enable a proper defence to be prepared.
The indictment, summons or charge must contain such details of the State case as are reasonably necessary to inform X of the nature of the charge. It must set out:
- the alleged time and place of the commission of the offence;
- the person, if any, against whom it was committed;
- the property, if any, in respect of which the offence was committed.
But if any of these particulars are not known it is enough for the indictment, summons or charge simply to state that they are unknown: s 146 CPEA.
In theft cases it is permissible for the State to allege that the theft took place between certain dates: s 147 CPEA and, in cases of theft of money or property entrusted into the custody of X, it is permissible to allege a general deficiency: s 148 CPEA. Where the theft is of bank notes and coins it is not necessary for the State to specify the particular bank notes or coins alleged to have been stolen s 149 CPEA. In respect of crimes of dishonesty generally, the charge does not have to allege intention to defraud a specific person: s 157 CPEA.
There are special provisions relating to the type of detail required in respect of a number of particular crimes- perjury: s 150 CPEA); homicide: s 154 CPEA; forgery: s 155 CPEA; and offences relating to insolvency: s 156 CPEA.
There are special provisions relating to charging companies: 152 CPEA, jointly charging several X for the same offence: s 158 CPEA, and joint trials of persons charged with different offences: s 159 CPEA).
Finally there are special provisions in s 151 CPEA relating to what may be alleged regarding ownership or possession of various types of property such as testamentary instruments, property hired to offender, State property and corporate property.
With all charges, other than those with which the defence lawyer is thoroughly familiar, the defence lawyer must do research in order to find out what are the essential ingredients of the criminal charge levelled against his client. If the criminal offence is a statutory offence, he should study the enactment in which the criminal offence is contained. He must carefully analyse the relevant section to ascertain the essential elements of the offence. In particular, he should find out whether the State is required to prove mens rea and, if it is, whether it must prove intention or merely negligence. Sometimes the statutory offence will be a strict liability offence, in which case proof of neither intention nor negligence will be required; all the State will have to prove is the actus reus. In order to determine what the essential ingredients are, the statutory criminal offence must be examined in the context of the entire enactment in question.
It is important to study the entire enactment for several other reasons. The penalty for the offence, provisions relating to methods of proof of the offence, and presumptions against X may sometimes be contained in sections other than that which creates the offence. Usually presumptions are placed at the end of the section dealing with the offence, whereas methods of proof come at the end of the statute as they may relate to various of the offences found in the statute.
The High Court ruling in the case of Sithole 1996 (2) ZLR 575 (H) is important. The court decided that X is normally entitled to have access to the witness statements contained in the police docket unless the State claims privilege for this material and discharges the onus of establishing that the State interests in protecting that material from disclosure outweighs the right of X to a fair trial. This does not, however, apply in bail applications: s 117A(10) CPEA.
In Chibaya & Ors HH-4-07 during a criminal trial, counsel for the accused applied for an order requiring the prosecution to furnish copies of the entries in the investigation diary forming part of the police docket. The court also held that the entitlement of the accused to witness statements contained in the police docket is part of our law. He is entitled to be furnished by the State with all information that would enable him to adequately prepare for the trial and mount a defence to the charges confronting him. However, entries in the investigation diary are not evidence that will be produced at the trial. The investigation diary is a running commentary on the efforts by the police to investigate the matter, but unless the court finds that it would be fair for the accused to be given access to the diary, on the grounds that it could provide assistance to the accused in the prosecution of his defence, the accused would not be entitled to access to it.
In Chibaya & Ors HH-4-07 during a criminal trial, counsel for the accused had applied for an order requiring the prosecution to furnish the defence with the transcript of a previous trial involving another during a criminal trial, counsel for the accused applied for an order requiring the prosecution to furnish the defence with the transcript of a previous trial involving another person.The court held that the record of the other trial, whether or not it was relevant to the present proceedings, was in the public domain and the accused were entitled to obtain a copy of it. However, it was not under the control of the prosecution, so the prosecution could not be ordered to provide it.
When X is committed for trial in the High Court, the State is obliged to serve on X at the same time as the indictment is served a document listing the witnesses which the State intends to call and a summary of the evidence which each will give in sufficient detail "to inform the accused of all the material facts upon which the State relies": s 66(6) CPEA. The person defending X will thus know at the time his client is committed for trial not only the particulars of the charge and the facts upon which it is based, but also the witnesses the State will be calling and the main points of their prospective testimony.
In Bhaiwa 1988 (1) ZLR 412 (S) McNally JA held that it is improper and highly prejudicial to an accused person for the prosecutor to leave damning statements in the outline of the State case when the prosecutor knows he is not going to call the evidence of the witnesses in question. In my view the catch phrase is that the prosecutor must not deliberately put or leave prejudicial statements in his Summary of the State case with the full knowledge that he does not intend to call evidence in proof thereof.
In Moyo defence counsel applied for portions of the State Outline to be expunged from the record on the basis that these were prejudicial to the accused as they purported to detail what the accused allegedly did and yet there was no indication from a reading of the summary of state witnesses that any witness was going to lead such prejudicial evidence. The application was not opposed by the State and the lines complained of were deleted from the state summary.
Where the case will be heard in the magistrates court, the defence lawyer will be provided with a copy of the charge sheet or summons. He is entitled to obtain from the State a list of the witnesses it intends to call against his client. He can also ask for a copy of the summary of the case prepared by the police.
If the prosecution case is not clear, further particulars should be sought in terms of s 177 CPEA. Even though the charge may comply with s 146 CPEA, the legal practitioner may still find that he requires further particulars in order to prepare the defence. For example, in a case of negligent driving the charge may give the required details as to date and place of the offence but the defence is still entitled to ask for particulars of the alleged negligence in order to prepare for trial. These particulars should be requested from the prosecutor. If the prosecutor refuses to supply such particulars, the defence lawyer can apply to the court for an order in terms of s 177 CPEA that such further particulars must be supplied.
In the Prosecutors Handbook Reid-Rowland says this in Chapter 9:
Discussion of an impending prosecution with the accused’s legal adviser is perfectly in order and indeed is usually advisable. Such discussion may well result in the defence agreeing to make admissions in order to shorten the State's case, or the defence may intimate that certain facts will not be disputed by the defence, with the result that the State may be able to dispense with calling certain witnesses.
Any such discussion should take place without the accused being present. Never hold any such discussion in the presence of the accused or any person other than his legal adviser.
It is thus perfectly permissible for defence counsel to negotiate with the prosecutor about the case. Defence counsel may want to talk to the prosecutor to try to narrow down the areas of dispute between the defence and the State and thus save time when the case is tried. He may wish to see whether the prosecutor is prepared to accept a plea of guilty to a lesser charge than that charged against his client instead of having a full scale argument in court as to whether the more serious crime was committed. (For instance, X may admit that he committed a minor assault but dispute that he intended to cause serious bodily harm.) He may even wish to discuss with the prosecutor whether there is indeed any case for his client to answer on the basis of the evidence at the disposal of the State and whether the charge should not be withdrawn. In this latter instance the defence lawyer may lay on the table the defence case and query with the prosecutor whether there is any case for X to answer.
It may be that a client is prepared to plead guilty if the State reduces the charge to a lesser offence. The defence lawyer may engage in a process of plea bargaining with the prosecutor to try to get the State to reduce the charge. The State may be prepared to reduce the charge in order that the case can be disposed of on the basis of a guilty plea. See Prosecutors’ Handbook pp 74-85 for discussion of how the State will approach plea-bargaining by defence lawyers.
This will arise only on very rare occasions. Such interviews may only take place after the prosecutor has agreed to them. The prosecutor will only give consent if he has been given sound reasons in support of this request. The State representative will normally insist on being present when such an interview is conducted.
A “State witness” is a witness whom the State intends to call. The term does not include a witness from whom the police took a statement but whom the prosecutor has decided not to call and has made available to the defence. If the prosecutor decides not to call a witness from whom a statement was originally taken, a copy of this statement should be made available to defence in case it wishes to call this witness as a defence witness.
Once the defence lawyer has understood the State case and has familiarised himself with the essential ingredients of the criminal offence which has been levelled against his client, he is then in a position to take instructions from his client.
If he has not done this preliminary work, he will not be able to take proper instructions. For instance, if he does not know the essential elements of the crime charged, he will not be able to ask salient questions of his client to determine whether all the essential elements appear to have been satisfied.
In an address (reproduced in 1988 Vol 1 No 2 Legal Forum 3) McNally JA gave guidance on preparing to defend an accused person. Although this speech related to murder cases, it is of more general application as well.
Read your papers carefully before you see the client. Try to recreate, in your mind's eye, the picture that the State seeks to create. Fit together, in chronological order, the various bits of evidence referred to in the State Outline. At the end you should have in your mind a clear picture of what happened, on the State's version.
Even at this stage, before speaking to your client, there may be a few questions in your mind. Perhaps the identification is weak. Perhaps a key witness has a reason to be lying or may be trying to shift the blame from himself or from his friend or relative. Perhaps there is a hint of drink or provocation, or insanity. Keep these thoughts in the back of your mind. They are provisional only, at this stage, depending on what your client will say.
He goes on to say in respect of a pro deo client who is facing a murder charge:
When you see your client, spend some time reassuring him. He may have been locked up for months. He has probably just been told by a warder; "Come with me". He doesn't know who you are or why you are there. You may be the prosecutor or a member of the CID as far as he is concerned. So spend a little time making sure that he knows you are there to help him. I always used to stress that I had been appointed by the Judge to defend him. I think that is easier for him to understand than if you say you are appointed by the State. After all, it is the State which is prosecuting him.
Initially the client should be allowed to tell his story in his own words with as few interruptions as possible. In this way the defence lawyer will obtain a general description of the problem from the client. Any questions asked at this stage should be open-ended questions rather than specific questions. Open-ended questions are questions which call upon the client to describe the course of the events such as "What happened after that?" If you interpose with specific questions on precise detail when the client is relating his story the client may lose his train of thought and consequently omit important facts which otherwise he would have disclosed. When the client has finished relating his story and you have obtained a general description of the events, you can then probe for specific details and seek clarification and elaboration on points which require this. At this stage specific questions can be asked to fill gaps in the story and to probe ambiguities.
The lawyer must listen carefully to what his client says and take full instructions. This does not mean that he must take down in writing everything a client says. He must extract from the client information which is relevant to his defence to the charges levelled against him.
The legal practitioner knows what the State allegations are that need to be answered and he must obtain from his client all information which is relevant to these allegations.
In complex and serious cases the lawyer will usually have to see his client on several occasions in order to take full instructions.
The weaknesses in the client's defence and ways of tackling them must be carefully considered.
The defence lawyer should bring to the client’s attention fundamental weaknesses in his case which are likely to lead to his defence not being believed. The client should be questioned closely about all unconvincing aspects of his defence.
In court the defence lawyer must present the case of his client to the best of his abilities, using his skill and judgment. The case is compiled on the basis of instructions given by the client. The lawyer, however, is not a mere mouthpiece of his client who must reproduce in court everything he was told by his client in the form in which it was told by the client. He has to sift through the welter of information and discard what is irrelevant and useless for defence purposes.
The defence lawyer will obviously be able to discern when putting forward a case in the way in which the client wants it put will do more harm than good. If, in a murder case, the client says that he accidentally stabbed the deceased six times, a good lawyer would not accept such instructions at face value. The inherent absurdity of such instructions should be pointed out to the client in very strong terms. Where the defence is downright untenable it should be put to the accused that this line of defence appears to be ridiculous and will not be believed by court. It would be far more in the client's interests to drop a ridiculous line of defence and plead guilty in order to try to obtain the maximum amount of mitigation. If he puts forward a totally implausible story the usual result is that aggravating features are emphasised rather than minimised.
Mc Nally JA has this to say about what he considers to be the most critical part of taking instructions:
It is necessary to explore [the accused's] story by putting to him the evidence of the witnesses whose accounts conflict with his. You must obviously be careful not to suggest to him avenues of escape so that he gradually tailors his story untruthfully to fit a line of defence you have suggested to him. That is patently unethical. But there is a world of difference between saying:
'You had better say you were drunk otherwise you will hang for sure'
which is totally unethical, and saying:
'Several of the witnesses say you were drunk. You should not be afraid to admit that if it is true. Now would you like to think about that?'
which is entirely proper. Many people are ashamed to admit they were drunk, or they think it will make matters worse for them.
You may end up with a story which sounds wildly improbable. Your duty is to check it out. Are there witnesses who can support it? If the story is an alibi, get hold of the supporting witnesses. If they are wholly unhelpful go back to your client and tell him. I have had sometimes had to say to a client:
Look, I have checked out your story and it just not hang together. I must advise you that I do not think the Court will believe it. If you insist that it is true, I must accept that, and I will do the best I can with the facts you have given me. But I must advise you to think very carefully. If you are not telling me the truth it may be better for you to tell me the truth now.
But be very careful, because he may then say to you:
'Well, what should I say?', and there, of course, you may not prompt him.
If the lawyer tells his client that his story is implausible and calls upon him to “tell the truth”, there is the risk that the client will proceed to admit his guilt and ask the lawyer to find ways to "get him off". It may be better simply to advise the client of the weaknesses in his defence case and to see how he responds.
The defence lawyer must not override his client's instructions merely because he does not believe the client's story. If he does, it will be extremely difficult for him to get the court to accept his client's version of the facts. It is not the lawyer's role to sit in judgment over his client. If the client insists on putting forward a story which to the lawyer appears incredible, the lawyer is still bound to advance that story in its best possible light. It is entirely wrong for him to present case in such a way that it is patently obvious that he has no faith in it. It must always be remembered that sometimes the most absurd sounding story turns out to be true.
In his article in the Legal Forum 3, McNally JA advises that:
When you go to Court you should have a plan of action in your mind. Assuming, as you must, that your client's version is correct, then you may have to discredit witness A completely. How will you set about that? Could he have a motive for lying? Explore it. Could he be mistaken? Explore that line. Your client may have given you useful ammunition to use. Witness B may be different. His evidence may need only a change of emphasis to accord completely with your client's evidence. How are you going to deal with him? It may be easy. The police may have recorded his statement inaccurately. He may readily agree with what you put to him.
The final stage of pre-trial consultation, apart from discussing the witnesses you should call, is to discuss with your client how he is going to plead to the charge.
Regarding the plea and admissions in murder cases Mc Nally JA has this to say:
We have had some appalling mix-ups recently: Masibhere & Anor S-103-87 and Nyandoro 1987 (2) ZLR 66 (S).
I find it difficult to understand why defence counsel get involved in such mix-ups. If you have reached agreement with the prosecutor on a plea to a lesser charge, such as culpable homicide or assault, you will advise your client to plead guilty to that lesser offence, and the prosecutor will then indicate that he accepts the plea. In all other murder cases X should be advised to plead "not guilty". But be careful of problems of interpretation. The client should not be misled into thinking you are advising him to say: "I did not do it".
The place for admissions of fact, if these are to be made, is in the defence outline, not in the plea: M'Kosi 1935 SR 96, Nangani 1982 (1) ZLR 150 (S) at 154B and Jokasi 1986 (2) ZLR 79 (S).
And counsel should consider carefully before they make far-reaching admissions of fact over such matters as their client's state of mind. For instance, if you want a witness called, so you can cross-examine him, the simplest way to do it is to decline to admit his evidence. The State has to call him. This is often useful with medical witnesses. Frankly I sometimes wonder on whose side defence counsel is.
Before any admissions are made by the defence in a criminal case, they should be fully discussed with and explained to the client. The lawyer should find out the exact extent of any admission his client wishes to make and he should explain to his client the implications of making such admissions. All admissions should be carefully and precisely drafted. The client should be asked to confirm, preferably in writing, exactly what it is that he is being asked to admit to.
An accused person can only be convicted of a crime if each and every essential ingredient of the crime in question has been proved by the prosecution. It is therefore imperative that the defence lawyer is aware of all the essential ingredients of the crime with which the accused has been charged in order to be able to argue, where this is the case, that his client should not be convicted because one or more of the essential ingredients of the crime charged have not been proved. .
If, as a result of his interviews with his client, the defence lawyer considers that the client is not mentally fit to stand trial, he or she should liaise with the prosecutor in the case so that the mental condition of the accused can be brought to the attention of a magistrate and an order can be made for a psychiatric investigation into the mental competence of the accuse to take place. Where the client is mentally unfit to stand trial he will be dealt with under s 27 of the Mental Health Act.
The defence lawyer must also consider whether the client was suffering from a mental disorder at the time that he or she did the act constituting the charge such that in terms of s 29 of the Mental Health the judicial officer will return a special verdict to the effect that the accused person is not guilty because of insanity. The mental disorder does not have to be permanent disorder. The crucial question is whether the disorder existed at the time the “crime” was committed. The Mental Health Act a special verdict will be returned if the accused was at the time the act was done “mentally disordered or intellectually handicapped so as not to be responsible for the act. It defines “mentally disordered or intellectually handicapped” as meaning that the person is suffering from mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind. “Psychopathic disorder” is defined as a persistent disorder or disability of the mind, whether or not subnormality of intelligence is present, which has existed or is believed to have existed in the patient since before 18 years old; and results in abnormally aggressive or seriously irresponsible conduct on the part of the patient. Various cases have interpreted these provisions. These cases have decided that under these provisions:
- the disorder or mental disorder or disability can be temporary - if it existed at the time of the act was committed it does not matter that X no longer suffered from that mental condition subsequently and at the time of the trial;
- the cause of the mental disorder or disability is immaterial - organic (e.g. brain tumour); physical (e.g. blow to head); functional (e.g. affecting functions with no discernible organic cause)
See Senekal 1969 (2) RLR 498 (A); Mawonani 1970 (1) RLR 41 (A); Ncube 1977 (2) RLR 304 (R)
Where the crime is apparently motiveless, this should alert the defence lawyer to the possibility that the client may have been suffering from some form of mental instability when he committed the crime. In the case of murder odd, inexplicable and bizarre behaviour before, during or after the killing or from the way in which the instructs his lawyer or the way in which he behaves must not be ignored, as it may provide the basis for establishing that X it entitled to the special verdict or at least there was diminished responsibility to an extent that constitutes extenuation. The defence lawyer has a duty to pursue this matter and to ask for a psychiatric examination where appropriate. In S v Ndzombane S-77-04 the court held that the apparently motiveless, odd and bizarre murder should have alerted the defence counsel to the possibility of mental disorder on the part of his client. The defence counsel woefully failed to heed the clanging alarm bells. He should have interviewed the client’s family, friends, co-workers and former employers, in an attempt to discover whether the client had any history of strange behaviour.
The psychiatrist who carries out this investigation must be asked not only to give an opinion as to whether X was mentally irresponsible to an extent that a special verdict is justified, but also if X was suffering was suffering from diminished responsibility. See Taanorwa 1987 (1) ZLR 62 (S) and Mukombe 1991 (1) ZLR 138 (S). Where the conduct of X at the time of the act was strange, the defence counsel would be well-advised to interview members of X's family, his friends, co-workers and former employers to ascertain whether he had any history of strange behaviour.
If the client was suffering from a temporary mental disorder at the time of the act but is now mentally stable, he or she may be reluctant to allow the lawyer to plead the special verdict on his or her behalf. The client may fear that if this route is taken he or she may end up being incarcerated in a mental asylum for the criminally insane. The lawyer should explain to the client that if this defence succeeds and the court also decides that the accused is no longer suffering from any mental disorder, it can simply order that he or she be released from custody. For instance, in the case of Machona 2002 (1) ZLR 61 (H), after a series of personal misfortunes, the appellant attempted to commit suicide by cutting his own throat. When taken to a doctor for treatment, he attacked the doctor, severely and permanently injuring him. The medical evidence was that the appellant, who was charged with attempted murder, had suffered a brief “reactive psychosis” or “psychotic episode” which was unlikely to recur. The court held that the appellant was mentally disordered at the time, and not merely suffering from diminished responsibility, and should have been found not guilty by reason of insanity. Because he was no longer mentally disordered, he was entitled to be released from custody. However, with a serious offence like murder, if the psychiatric evidence indicates that the accused is or may be still mentally disordered, the court may order that he or she be returned to prison for transfer to a mental institution for treatment or for further examination to decide his or her mental state. On the other hand, with petty offences the court does not have to order that the accused be sent to a mental institution. Petty offences are those in respect of which the accused would not have been sentenced to imprisonment without the option of a fine or to a fine exceeding level three. In respect of petty offences if the court finds that the accused was mentally disordered at time of alleged crime but that he is no longer mentally disordered at the time of the trial, it may make any of these orders:
- that he or she submit himself to examination and/or treatment at a specified institution;
- That his or her spouse, guardian or close relative apply for a civil detention order.
The court may then make an order to secure his or her release from custody or for purpose of such examination or treatment: s 29(2) of Mental Health Act.
One point that defence counsel must be aware of is that even if the defence does not raise the defence of mental disorder, if the court suspects that X was suffering from a mental disorder at the time of the crime, the court itself can order that X be subjected to a psychiatric examination to determine whether the special verdict is applicable.
In A Juvenile 2009 (2) ZLR 409 (H) the court held that the effect of s 229 of the Criminal Law Code is that if an accused person is proved to have committed the acts constituting the crime charged, but is also proved to have been suffering from a mental disorder or defect at the time of committing the offence, which mental disorder or defect constitutes a complete defence in terms of s 227 of the Code, he must in terms of s 29(2) Mental Health Act be found not guilty because of insanity, and be dealt with in terms of the options provided in subss (a) to (c) of that section. Section 229 of the Code applies to Part V of the Code, which comprises ss 226 to 229. However, s 29(2) of the Mental Health Act, which provides for a special verdict, refers to s 248 of the Code as being the section which provides for a mental disorder or defect being a complete defence. Section 248 actually provides for consent to medical treatment for none-therapeutic purposes. It is therefore not the provision intended by the legislature in s 29(2) of the Mental Health Act. The legislature clearly intended to refer to a section of the Code which provides for a mental disorder or defect being a complete defence, that section being s 227. A wrong section was referred to in s 29(2) of the Mental Health Act. As to whether the court can substitute s 248 of the Code with s 227 of the Code, in s 29(2) of the Mental Health Act, the court can do so, as the intention of the legislature is clear, and reference to s 248 was an obvious error. In interpreting a statute, the court must be guided by the clear intention of the legislature. When the words used by the legislature create an absurdity they can be modified to bring out the clear intention of the legislature.
Having returned a special verdict, the court has three options under s 29(2): (a) if the accused person still needs to be mentally examined or to be treated, he has to be returned to prison where he will be transferred to an institution or special institution for examination or treatment; (b) If the offence the accused person was facing and for which a special verdict has been returned was one for which the accused could not have been sentenced to imprisonment or a fine exceeding level three, then the accused can be released to be dealt with in terms of s 29(2)(b); (c) if the court is satisfied that the accused is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, it can order his discharge. If (a) is applicable, the condition of a prison does not justify the court's refusal to send to prison those the law says must be send there. The court has to proceed in terms of the correct option. From prison the accused must be transferred to a designated institution or special institution, as defined by s 2 of the Act.
The requirements for the various defences that can be raised in respect of criminal charges are set out in Chapter 14 of the Criminal Law (Codification and Reform) Act. Defence counsel should obviously familiarise themselves with what defences are available and what the essential requirements are for these defences.
In cases involving violence the most important defences are self-defence, provocation and intoxication.
Self-defence and defence of a third person can be full defences if all the requirements for this defence are satisfied. Involuntary intoxication can be a full defence. Involuntary intoxication involves a situation such as where someone slipped a drug into X’s drink and X consumed it without X knowing that it contained the drug. If X lacked the mens rea for the crime because of the effects of the drug, he or she will have a full defence. On the other hand, provocation and voluntary intoxication can only be defences to a charge of murder. If as a result of the provocation or intoxication or a combination of the two, X lacked the intention to kill, he or she will be found guilty of culpable homicide. In respect of provocation, even if X did intend to kill, if the provocation great and caused X to lose his or her self-control and even a reasonable person subjected to that degree of provocation would also have lost his or her self-control, the crime of murder will be reduced to culpable homicide. Even if the provocation or voluntary intoxication do not constitute a partial defence, they may still amount to extenuating factors so that the death penalty will not be imposed. In respect of all crimes other than murder, the provocation and voluntary intoxication can at most be mitigatory factors.
The question, "Why did you do this?" should always be put to see whether there is some defence which may be open to X. With property crimes like theft and malicious damage to property the legal practitioner should always investigate whether X committed the property crime under any sort of claim of right: claim of right can be a full defence. Although ignorance of the law is no defence in our law (except where X acts on the basis of mistaken advice of an administrative official), claim of right can be a defence. See ss 118, 122 and 144 of the Criminal Law (Codification and Reform) Act. See, for instance, Kawocha S-22-92.
Reid-Rowland 13-2 – 13-3
A child under the age of seven may not be tried for a criminal offence as such a child is irrebuttably presumed to be incapable of committing a crime; he or she is deemed to be doli incapax, that is, incapable of forming the required criminal intention. Section 6 of the CL Code provides that “a child below the age of seven years shall be deemed to lack criminal capacity and shall not be tried for or convicted of any crime which he or she is alleged to have committed before attaining that age.
A child between the ages of seven and fourteen can be prosecuted provided that the Prosecutor-General has given his or her consent to the prosecution: Eva 1967 (1) RLR 113 (GD). However, such a child is rebuttably presumed to be devoid of the capacity to commit a crime and the State must prove that the child in question was sufficiently mature to understand and that he or she did understand the wrongfulness of his or her conduct. Section 7 of the CL Code provides:
“A child over the age of seven years but below the age of fourteen years at the time of the conduct constituting the crime which he or she is alleged to have committed shall be presumed, unless the contrary is proved beyong reasonable doubt –
- to lack the capacity to form the intention necessary to commit a crime; or
- where negligence is an element of the crime concerned, to lack the capacity to behave in the way that a reasonable adult would have behaved in the circumstances.
A child between the ages of seven and fourteen can be prosecuted provided that the Prosecutor-General has given his consent to the prosecution: Eva 1967 (1) RLR 113 (GD). However, such a child is rebuttably presumed to be devoid of the capacity to commit a crime and the State must prove that the child in question was sufficiently mature to understand and that he did understand the wrongfulness of his conduct. If the State rebuts this presumption it must then prove that the essential elements of the crime were present. In the case of F 1988 (1) ZLR 327 (H), the magistrate convicted a ten-year-old boy of indecent assault on an eight-year-old girl. The magistrate failed to examine whether the child had the requisite capacity. X was prosecuted despite the fact that a probation officer had stated that both X and the complainant were too young to appreciate either the wrongfulness of what they were doing or to understand criminal proceedings. The conviction was set aside, after the review judge severely criticised both the prosecutor and the trial magistrate.
In Ncube & Ors HH-139-11 the court dealt with the trial of juvenile offenders. The court observed that judicial officers should always bear in mind that children in conflict with the criminal law constitute a special category of offenders for which there are specific and peculiar legislative provisions, both within our jurisdiction and other international conventions, designed to deal with such offenders. Useful guidance can be sought from both the United Nations Convention on the Rights of the Child (1990) and the African Charter on the Rights and Welfare of the Child (1999). Article 17 of the Charter deals, in some useful detail, with the administration of juvenile justice where children are in conflict with the criminal law. Guidelines are given on such issues as arrest, detention, the presumption of innocence, legal representation and other related matters. Article 40 of the Convention sets out what may be deemed to be minimum standards to be met by the criminal justice system in dealing with children in conflict with the criminal law.
In our jurisdiction, the Criminal Procedure and Evidence Act (see ss 191, 195, 196, 197, 351, 352 and 353) and the Criminal Law (Codification and Reform Act) (see ss 6, 7, 8, 63 and 70) have a number of sections that specifically provide for how the courts should deal with juvenile offenders and juvenile witnesses who are both in contact or in conflict with the criminal law. Section 191 CPEA provides that, if a child is below 16 years and is being tried in the magistrates’ court, he or she may be assisted by a natural or legal guardian, or the court may appoint another person to assist the juvenile. This practice should be extended to all juveniles, even those over 16. It is desirable for such children to be legally represented. In our civil law minors or juveniles cannot represent themselves in any proceedings but in our criminal justice system such minors are given capacity to represent themselves, as it were. This is harsh and in violation of the children's rights as enshrined in both the Charter and the Convention. Placing a juvenile, particularly a very young child, unrepresented and unassisted by its parents on trial before a magistrate is inherently repugnant. It might well be thought that to place such a child in a position where he or she is expected to conduct his own defence in an alien environment in adversary proceedings is to expect far too much.
The age of a juvenile offender is a crucial factor to which the court should apply its mind in all criminal proceedings. The inquiry into the juvenile offender's age should start at the time of arrest if the courts are to properly protect the rights of children in conflict with the criminal law. Where a child is put on trial, an inquiry into the child's age must be made, because from that inquiry many other important considerations flow. If the child is under 14 years at the time of the alleged offence, the first decision is whether there is evidence to displace the presumption that the child did not have criminal capacity. Even if such evidence is available, the next question is whether, as a matter of policy, such a young person should be subjected to the might of the criminal justice system. Other methods of dealing with such an offender might be appropriate. Without knowing the age of the accused and whether they are juveniles or not, there is a real danger is that the accused persons might be subjected to an improper and incompetent penalty or sentence.
It is provided in s 142(5) CPEA that unless the magistrate otherwise directs, when the police arrest a person under the age of 18 in order to bring him to court on a criminal charge or warn him to appear before the court to answer a charge, they must also warn the parents or guardian, if they can be located, to attend court when the juvenile appears. It is obviously important that with juvenile offenders (especially those between seven and fourteen) the court should, wherever possible, hear from the parents or guardian as to the domestic circumstances of X and other salient matters.
In Ncube 2011 (1) ZLR 192 (H) X was aged 18 years at the time he was convicted of the rape of a 12 year old girl. At the time of the offence, however, he was aged 16. Although he did not deny the act, the case took so long to get to trial that he had turned 18 before the trial. He was, accordingly, treated as an adult for the purposes of sentence.
The court held that the decision of the prosecution to withhold the matter while biding time for the accused to attain the age of 18 and arraigning him before a magistrate thereafter in order to secure a stiffer sentence by virtue of the fact that the accused would not be entitled to a sentence of corporal punishment was unacceptable. This conduct was extremely undesirable and brought the administration of justice to serious disrepute. The State should not be allowed to benefit from its own default, as it were, deliberately designed to gain an unfair advantage over young offenders.
It is obviously important to find out from potential defence witnesses what they actually know about the events in question. It is dangerous to rely upon what X or his relatives say that certain witnesses know and to subpoena such persons as witnesses based upon what you have been told they will say. Possible defence witnesses should be interviewed to see what they know about salient matters. They can be called if they can give testimony which is favourable to the defence case.
A problem may arise where the legal practitioner finds from interviewing a witness that the witness could provide valuable evidence for the defence, but the witness has indicated that he is unwilling or reluctant to give this testimony in court. If the testimony of the witness is vital to the defence, the defence may have to have the witness subpoenaed. In deciding whether to have a reluctant witness subpoenaed, the defence lawyer will have to consider what evidence he is likely to be able to extract from the reluctant witness in court and whether his testimony will do his client any good.
Unless X is a young child, witnesses should not be interviewed in the presence of X. If the witnesses are interviewed when X is present, a suggestion could then be made that the lawyer has collaborated with X in influencing the witness to testify along certain lines or to embellish his or her testimony in a manner which is favourable to the defence.
If the client has limited financial means, the defence lawyer can seek the assistance of the Registrar or the clerk of court in securing the attendance of the defence witnesses both for pre-trial interview and for the purposes of giving evidence in court.
Section 188(a) CPEA lays down that, if X pleads not guilty in a trial in the magistrates court, the prosecutor must first give an outline of the nature of the State case and the material facts on which he relies. The defence will be requested to give an outline of his defence and a summary of the evidence which each witness will give in sufficient detail to inform the State of all the material facts on which X relies in his defence.
In practice what often happens is that before the case is heard the State provides only a general summary of the State case and does not provide a summary of the evidence of each witness. Frequently the defence will not supply its defence outline in advance of the commencement of the case but the defence outline will only be handed over to the State just before the case begins or at the beginning of the case.
When an X is indicted for trial in the High Court, in terms of s 66(6) CPEA, he must be served with the indictment which sets out the details of the charge against him and a notice of trial. At the same time he will be served with
- a document containing a list of witnesses the State will call at the trial and a summary of the evidence which each witness will give, sufficient to inform X of all the material facts upon which the State relies; and
- a notice requesting X
- to give an outline of his defence, if any, to the charge; and
- to supply the names of any witnesses he proposes to call in his defence, together with a summary of the evidence which each witness will give, sufficient to inform the State of all the material facts on which he relies in his defence.
In terms of s 66(8) CPEA, where X is legally represented, the legal representative must send the defence outline to the office of the Prosecutor-General and lodge a copy with the registrar of the High Court at least three days before the trial (Saturdays, Sundays and public holidays excluded.)
Before drafting the defence outline, the defence lawyer must have studied carefully the basis of the State case. He must be fully conversant with the essential elements of the crime charged, as the defence case may revolve around submissions that one or more vital ingredient of the crime was absent.
Before the defence outline is compiled, the defence lawyer should also obviously have a thorough knowledge of his client's case. Unless full instructions have been taken from the client, the lawyer will not be in a position to compile an appropriate outline of defence and to conduct a proper defence when the matter is tried.
The legal practitioner must ensure that he has sufficient time to investigate X's version of what happened before the defence outline is finalised. If X has witnesses whom he wishes to call, these witnesses should, wherever possible, be interviewed before the defence outline is handed in. It is certainly not going to do the client any good if the defence outline says that witnesses will say such and such and thereafter the evidence which they give is a totally different version of the facts.
If for some valid reason it is not possible to interview some witnesses before the trial is due to start, apply for a postponement of the case so that the witnesses can be interviewed. Unfortunately not infrequently pro deo cases have been assigned a short time before the case is due to be heard. It is the duty of the lawyer to ensure that he has adequate time to prepare the case by way of interviewing his client and witnesses and drafting a defence outline. If he is left with inadequate time to prepare properly, he is duty bound to apply for a postponement of the case so that he can have an adequate amount of time for preparation. Even if the reason why he has been left with inadequate time for preparation is his own dilatoriness, he is obliged to apply for a postponement and to explain honestly to the court why it is that he is unable to proceed with the case at the present time. It is improper and completely unfair to his client for the lawyer to go ahead with the case when he is inadequately prepared.
Another situation which sometimes arises is where a senior partner in a law firm hands a criminal case over to a legal assistant at the last moment, possibly because his senior has double dated himself, and instructs the legal assistant to appear in the case. The legal assistant must apply for a postponement if he does not have enough time to prepare to argue the case, even though this may be against his instructions from his senior. The client must not be prejudiced by the disorganisation of the senior.
The purpose of the defence outline is to inform the State and the court about the nature of the defence and to define the issues between the State and the defence.
All material facts must be included. If they are not, the State is likely to cross-examine on basis of whether X told his defence counsel about these facts when he was instructing him and, if he did, why these facts are not in the defence outline.
In the case of Mandwe 1993 (2) ZLR 233 (S) the court pointed out that the outline of the defence cases is similar in function to pleadings in a civil trial, serving to identify what may be in issue and advising each side of the substance of the matters in issue. Further, because the defence outline is a categorical assertion by X of facts on which he relies for his defence, any significant and unexplained departure by the accused in evidence from the outline may be a matter for comment or even adverse conclusion.
However it was pointed out in Pandehuni 1982 (2) ZLR 133 (S) at 135 that X's outline is no more than just that. It is merely an initial outline, given in response to a similar outline of the State case. It is not a comprehensive and detailed exposition such as would be expected in the course of evidence in chief given in the normal way after the State witnesses have testified. This comment, however, was made in relation to an outline given by an accused who was not legally represented.
The defence outline is not supposed to be a detailed statement of the facts constituting X's defence and of everything that the defence witnesses will say. It is intended simply to portray the key aspects of the defence. Indeed, from a tactical standpoint, it is inadvisable to insert minute details into the outline, as there is then increased scope for discrepancies to arise between what is in the outline and what the defence witnesses say in court. These can be exploited by the prosecutor.
It is best simply to narrate the major aspects of the defence rather than to give a verbatim account of what X will say in court in his defence. If the defence lawyer gives an account of what X will say prefaced by the phrase "The accused will say..." and X deviates from what the outline indicates he will say, then the prosecution will be likely to make much capital out of these discrepancies to the prejudice of X. On the other hand, if the nature of the defence is related in broad terms, it is then open to X to express his defence in his own words at the time of the trial.
Note must be made of the fact that the defence outline does not constitute evidence; it is merely a summary of the evidence which the defence intends to produce during the trial: Nyandoro 1987 (2) ZLR 66 (S).
Neither in the High Court nor in the magistrates court is X obliged to provide a defence outline when requested to do so. However, adverse inferences can be drawn from the failure to mention facts relevant to his defence at the start of the trial: s 189 CPEA.
In deciding whether X committed the crime:
- the court can draw such inferences as appear proper from the failure of X to mention facts relevant to his defence which, in the circumstances existing at the time, he could reasonably have been expected to have mentioned.
- the court may, on the basis of such inferences, treat X's failure to mention these facts as evidence corroborating any other evidence given against X.
It is thus normally very ill-advised in any case, where X is pleading not guilty, to decline to outline the defence at the start of the trial. About the only situation where non-submission of the outline may be justified is where the State does not have the evidence to prove its case and the defence does not want to provide ammunition upon which the State could build its case by outlining a defence case which is weak. Even in this instance it would seem that an outline could be submitted in which X simply states that he denies the charge and puts the State to the proof of the case against him. If the defence will argue that the facts upon which the State case is to be based do not constitute a prima facie case, this should obviously be set out in the defence outline.
This has been mentioned earlier.