Every accused person has the right to a fair trial by an impartial judicial officer. If the judicial officer is biased or there is a reasonable suspicion that he or she will be biased, the defence lawyer has a duty to raise this matter and to request that the judicial officer concerned recuse himself or herself.
Every accused person has the right to a fair trial by an impartial judicial officer. For the public to have confidence in the administration of justice, it is essential that the courts are seen to be fair and impartial. Where defence counsel has reasonable grounds for believing that the presiding judicial officer is biased or there is a reasonable suspicion that the judicial officer will be biased, defence counsel is entitled to apply for the recusal of the judicial officer
If the judicial officer is biased or there is a reasonable suspicion that he or she will be biased, the defence lawyer has a duty to raise this matter and to request that the magistrate recuse himself or herself. However the lawyer should make the application for the recusal of a judicial officer respectfully and tactfully. The judicial officer should where possible be informed of the application and the grounds for it before it is made. This can be done by going to see the judicial officer in his chambers, together with the prosecutor, and telling him why it is felt he should recuse himself. This will enable the judicial officer to consider the question in private and to avoid the possible embarrassment of an application being made in open court. In S C Shaw (Pvt) Ltd v Minister of Lands S-32-05 the lawyer representing a client who was challenging the validity of compulsory acquisition of land alleged that the acceptance of offers of land by judges prior to the determination of the validity of the acquisition of the land, together with improper pressures brought to bear on judges by members of the government and cabinet, was not compatible with constitutional concept of a fair trial before an independent tribunal. No evidence was submitted in support of this allegation. It was held that courts in Zimbabwe have a responsibility to protect their dignity. Where legal practitioners, who are officers of the court, and as such, are expected to know better, make irresponsible submissions scandalizing the court mere admonition is inadequate and action should be taken to punish such legal practitioners for contempt of court.
Before making an application for a judicial officer’s recusal, the legal practitioner must satisfy himself or herself that there are well-founded grounds for applying for the recusal of the judicial officer concerned. The legal practitioner must not simply base the application on what he has been told by his client without checking this information. Thus in the case of Muzana & Ors S-105-89, the Supreme Court severely censured a defence lawyer who had made serious allegations of partiality and bias on the part of a magistrate in an effort to get him to recuse himself. He had simply repeated his client’s assertions without having made any effort to check whether there were any facts to substantiate these allegations.
The tests for bias on the part of a judicial officer are objective: whether, as a matter of fact, there is a real possibility of bias, or whether there is a reasonable belief that a real likelihood of bias exists. In either case the party seeking recusal must show a reasonable fear, based on objective grounds, that the trial will not be impartial: Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H).
In Mahlangu v Dowa & Ors HH-4-11 the court held that the test to be adopted in determining whether or not a judicial officer should recuse him or herself is a two-fold, objective, test: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. Where an applicant makes an application of this nature, the court should not take it as an affront. What defines the reasonableness of the applicant and the apprehension itself is the nature of the link or association between the judicial officer and the parties in the litigation. No reasonable person would entertain an apprehension that a judicial officer would be biased in favour of the police simply by virtue of a marriage to a police officer. A litigant must advance more information to warrant the apprehension. A sizeable number of matters before the court, both criminal and civil, relate to the police. There was no distinction between the present matter and those other matters where the police are litigants. The apprehension expressed by the applicant would mean that the judicial officer would have to recuse himself or herself from almost all the cases where the police and its officers are litigants. Such an apprehension would be unreasonable. In this case the applicant, a senior legal practitioner, had been arrested and detained.
A judicial officer should not try a case if X or the complainant is his friend or enemy or is his relative So too he should not try a case involving his wife’s mother or the spouse of one of his long standing and trusted court officials. Although the judge may be confident that he or she can exclude from his or her mind his or her relationship with the party concerned and judge the case solely on the basis of the evidence, he or she should recuse himself because the public may well believe that his or her decision was influenced by his or her relationship to X or the complainant. Thus, if he or she ends up convicting and severely sentencing a person whom he or she is known to have quarrelled with in the past, it might well be thought that his or her decision was influenced by his or her hostility to X. So too he or she should not try a case involving his or her spouse’s mother or the spouse of one of his or her long-standing and trusted court officials.
In Mahlangu v Dowa & Ors HH-4-11 the applicant, a senior legal practitioner, had been arrested and detained. An urgent application was made for his release on bail and a declaration that his arrest and detention were unlawful. The first three respondents were police officers, cited in their personal or official capacities. Before the application could be heard he was granted bail by a magistrate. The urgent proceedings were converted to an ordinary application. At the hearing, the applicant's counsel sought the recusal of the presiding judge on the grounds that she was married to a senior officer in the police force and that she would be biased in favour of the respondents on the basis that the application related to her husband's subordinates and superiors respectively. The applicant also argued that because of her marriage the judge may have had prior knowledge of facts that would influence her in ruling in favour of the respondents. The court held that no reasonable person would entertain an apprehension that a judicial officer would be biased in favour of the police simply by virtue of a marriage to a police officer. A litigant must advance more information to warrant the apprehension. A sizeable number of matters before the court, both criminal and civil, relate to the police. There was no distinction between the present matter and those other matters where the police are litigants. The apprehension expressed by the applicant would mean that the judicial officer would have to recuse himself or herself from almost all the cases where the police and its officers are litigants. Such an apprehension would be unreasonable.
In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the applicants were arraigned before a regional magistrate, for trial on charges of escaping from prison. The trial did not start at the planned time. When it resumed, counsel for four of the applicants was not present. The magistrate nevertheless, in spite of the applicants’ protests and a request for postponement, ordered the applicants to give their defence outlines. Counsel returned when the first applicant was giving his defence outline. It was argued that the dismissal of the applicant's applications for postponement when their counsel failed to appear on time, and his requiring them to immediately give their defence outlines, reflected an extraordinary eagerness of the magistrate and the Prosecutor-General to fast track the trial and that this raised a reasonable apprehension of bias in the applicants. It was also argued that, as the magistrate had presided over the applicants' accomplices' trial, this creates a reasonable appearance of bias as the magistrate was most likely to believe the accomplices when they testified that an attempt to escape from prison occurred, than to believe the applicants if they were to say it did not. The court held that a judicial officer is expected to manage his court in the interests of justice and the efficient administration of justice. The circumstances in which the applications for postponement were dismissed must therefore be carefully considered. A judicial officer, can in a proper case, insist that a scheduled trial must begin. That would not, in the absence of other apparent motives, be an indication to a reasonable litigant of bias. A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources. The need for efficient court management by judicial officers must, however, give way to the delivery of quality justice, which must be seen to be done. In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes. Here, the magistrate was merely exercising firm control of the proceedings in circumstances where he was justified in suspecting delaying tactics on the part of the applicants and their legal practitioner.
In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the applicants were arraigned before a regional magistrate, for trial on charges of escaping from prison. Counsel asked the magistrate to recuse himself on the grounds that because he had presided in the cases of two men who were participants in the applicants' alleged attempted escape from prison. They had pleaded guilty and been sentenced to terms of imprisonment. It was argued that the applicants reasonably believed that the magistrate's knowledge of their case gained from his presiding over the other case would make it impossible for him to impartially assess their evidence, in view of the fact that the two men would testify for the State in the applicants' trial. The magistrate refused to recuse himself, and an urgent application was made to the High Court seeking a stay of the proceedings before the magistrate pending review by the High Court.
The reasons for recusal in the present case was not actual bias but an appearance of bias, which is the applicants' perception of how the magistrate was conducting their case, based on how he handled preliminary applications in their case, his exposure to information about their case and his refusal to recuse himself. An application for recusal must be based on a reasonable litigant's apprehension of bias and the apprehension must itself be reasonable. Mere apprehensiveness on the part of a litigant that a judge will be biased – even a strongly and honestly felt anxiety – is not enough. The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value and thereby decides whether it is such that it should be countenanced in law. A judicial officer is expected to manage his court in the interests of justice and the efficient administration of justice. The circumstances in which the applications for postponement were dismissed must therefore be carefully considered. A judicial officer, can in a proper case, insist that a scheduled trial must begin. That would not, in the absence of other apparent motives, be an indication to a reasonable litigant of bias.
The fact that a judicial officer previously made a decision about substantially the same dispute between the same parties and that he must therefore be biased, when he presides over the same parties' dispute for the determination of a further issue arising from the one already decided, is answered by the principle of res judicata, putting that judicial officer in the same position as any other judicial officer. In such a case there would be no reason for the judicial officer to recuse himself, because once a matter is res judicata it cannot be decided again on the same issue. Here, however, two disputes were not between the same parties. The applicants' apprehension of bias could not be defeated by the principle of res judicata. In this case the issue of there having been an attempt to escape from prison was not res judicata between the applicants and the State. It had never been decided between them. Justice will not be seen to be done when a magistrate who has convicted an accomplice has to determine whether that an accomplice is telling the truth when he comes before him as a witness to tell the same story but now for the purpose of securing the unconvicted accomplices' conviction. The court held that even though the magistrate was a trained judicial officer, and there was a presumption of judicial impartiality in his favour, that could not convince the applicants, to believe that he will dispassionately assess the evidence of witnesses he previously believed and convicted having accepted that they correctly confessed their part in the crime the applicants were facing. The applicants' apprehension was reasonable, and the proceedings before the magistrate would be stayed.
On the other hand, the judicial officer must not conduct a criminal trial in a manner that will create the impression that he or she is biased against the accused. In Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) it was held that the conduct of the magistrate towards the applicant throughout the trial was such that a fair trial of the applicant was impossible in her court. Apart from a number of irregularities, there were numerous indications of biased and irrational conduct on the part of the magistrate, all of which showed that the applicant would have reasonable grounds to suppose that he or she might be disadvantaged in the trial by reason of bias or prejudice actuating her.
Thus the conduct of a judicial officer during the course of the trial can lead to a reasonable apprehension of bias. Judicial officers who are presiding over criminal cases must not descend into the arena in the sense that they must not intervene during the course of trials in such a manner or to such an extent as to lead to an inference of lack of impartiality and open-mindedness. They are entitled to ask questions of witnesses in order to clarify the evidence, but they must refrain from bombarding them with questions to such an extent that they are disconcerted. If magistrates take over the role of examining or cross-examining witnesses they will not be able objectively to adjudicate on the evidence. They should not engage in questioning in way that gives the appearance that they are displaying bias in favour of prosecution
In Mutizwa HB-4-06 the accused asked the magistrate to recuse herself, as he had heard, through prison talk, that she had a reputation for imposing harsh sentences. The magistrate dismissed the application. The court held that an impartial judicial officer is a fundamental prerequisite for the fair trial and a judicial office should not hesitate to recuse himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. The duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he or she may not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his or her impartiality that is important. The issue of actual bias does not arise. In the present case the accused had not established an appearance or apprehension of bias; the basis for the application is that the magistrate is known for imposing severe sentences. The accused sought recusal so that he could be tried by a magistrate who was perceived to impose lenient sentences. This “fishing” for judicial officers is not what this principle is intended to achieve. Severe sentences are not indicative of bias, nor are lenient sentences indicative of fairness or lack of bias. It is the competence of the sentence that matters, and the judicial officer has wide discretion on the question of punishment.
If the prosecutor wrongly discloses the previous convictions to the magistrate during the course of the trial, the judicial officer is obliged to recuse himself or herself. If he or she does not do so, the defence lawyer should request that her or she recuse himself or herself.
In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the court held that judicial officers generally recuse themselves on their own motion or on application by a party, on realizing the presence of facts disqualifying them from presiding over a case. If the judicial officer does not recuse himself in such circumstances, a party who applies for the judicial officer's recusal and his application is turned down is most likely to succeed if he applies for the stay of the proceedings pending review.
In Masedza 1998 (1) ZLR 36 (H) the applicants were being prosecuted for a criminal offence in the magistrates court. During an adjournment of the proceedings, the applicants became aware of certain facts and, based on these facts, they applied for the recusal of the presiding magistrate. The magistrate refused the application. The trial was postponed to enable the magistrate’s decision to be taken on review. The applicants applied to the High Court for an order stopping the criminal proceedings in the magistrates’ court, pending a review of the decision in relation to the application for recusal. The High Court held that if in the present case the application for recusal had been well founded, the court would have been prepared to grant an order stopping the trial pending review, as no purpose would have been served by putting accused through motions of a trial that would have been abortive. If there had been a reasonable apprehension of bias then justice will have failed and it might not be attained by other means. However, it found that the grounds upon which recusal was requested did not give rise to a reasonable apprehension of bias and thus the application for stopping the criminal proceedings failed.
If a magistrate has to recuse himself during the course of the trial, the case cannot be taken over from that stage by another magistrate. The case will have to start de novo before a different magistrate. If, however, a magistrate recuses himself after he has convicted X, the case can be referred to a different magistrate for sentence: Moyo & Ors HB-211-87.
The tests for bias on the part of a judicial officer are objective: whether, as a matter of fact, there is a real possibility of bias, or whether there is a reasonable belief that a real likelihood of bias exists. In either case the party seeking recusal must show a reasonable fear, based on objective grounds, that the trial will not be impartial:
In Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) the court said that before making an application for a judicial officer’s recusal, the legal practitioner must satisfy himself or herself that there are well-founded grounds for applying for the recusal of the judicial officer concerned. The legal practitioner must not simply base the application on what he has been told by his client without checking this information. Thus in the case of Muzana & Ors S-105-89, the Supreme Court severely censured a defence lawyer who had made serious allegations of partiality and bias on the part of a magistrate in an effort to get him to recuse himself. He had simply repeated his client’s assertions without having made any effort to check whether there were any facts to substantiate these allegations. In the case of S C Shaw (Pvt) Ltd v Minister of Lands S-32-05 the lawyer representing a client who was challenging the validity of compulsory acquisition of land alleged that the acceptance of offers of land by judges prior to the determination of the validity of the acquisition of the land, together with improper pressures brought to bear on judges by members of the government and cabinet, was not compatible with constitutional concept of a fair trial before an independent tribunal. No evidence was submitted in support of this allegation. It was held that courts in Zimbabwe have a responsibility to protect their dignity. Where legal practitioners, who are officers of the court, and as such, are expected to know better, make irresponsible submissions scandalizing the court mere admonition is inadequate and action should be taken to punish such legal practitioners for contempt of court.
An application for the recusal of a judicial officer must be made respectfully and tactfully. The judicial officer should where possible be informed of the application and the grounds for it before it is made. This can be done by going to see the judicial officer in his chambers, together with the prosecutor, and telling him why it is felt he should recuse himself. This will enable the judicial officer to consider the question in private and to avoid the possible embarrassment of an application being made in open court.
For the public to have confidence in the administration of justice, it is essential that the courts are seen to be fair and impartial. A judicial officer should therefore not try a case if X or the complainant is his friend or enemy or is his relative So too he should not try a case involving his wife’s mother or the spouse of one of his long standing and trusted court officials.
If the prosecutor wrongly discloses the previous convictions to the magistrate during the course of the trial, the judicial officer is obliged to recuse himself or herself. If he or she does not do so, the defence lawyer should request that he or she recuse himself or herself.
The conduct of a judicial officer during the course of the trial can lead to a reasonable apprehension of bias. Judicial officers who are presiding over criminal cases must not descend into the arena in the sense that they must not intervene during the course of trials in such a manner or to such an extent as to lead to an inference of lack of impartiality and open-mindedness. They are entitled to ask questions of witnesses in order to clarify the evidence, but they must refrain from bombarding them with questions to such an extent that they are disconcerted. If magistrates take over the role of examining or cross-examining witnesses they will not be able objectively to adjudicate on the evidence. They should not engage in questioning in way that gives the appearance that they are displaying bias in favour of prosecution. In Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) it was held that the conduct of the magistrate towards the applicant throughout the trial was such that a fair trial of the applicant was impossible in her court. Apart from a number of irregularities, there were numerous indications of biased and irrational conduct on the part of the magistrate, all of which showed that the applicant would have reasonable grounds to suppose that he might be disadvantaged in the trial by reason of bias or prejudice actuating her.
In Masedza 1998 (1) ZLR 36 (H) the applicants were being prosecuted for a criminal offence in the magistrates court. During an adjournment of the proceedings, the applicants became aware of certain facts and, based on these facts, they applied for the recusal of the presiding magistrate. The magistrate refused the application. The trial was postponed to enable the magistrate’s decision to be taken on review. The applicants applied to the High Court for an order stopping the criminal proceedings in the magistrates court, pending a review of the decision in relation to the application for recusal. The High Court held that if in the present case the application for recusal had been well founded, the court would have been prepared to grant an order stopping the trial pending review, as no purpose would have been served by putting accused through motions of a trial that would have been abortive. If there had been a reasonable apprehension of bias then justice will have failed and it might not be attained by other means. However, it found that the grounds upon which recusal was requested did not give rise to a reasonable apprehension of bias and thus the application for stopping the criminal proceedings failed.
If a magistrate has to recuse himself during the course of the trial, the case cannot be taken over from that stage by another magistrate. The case will have to start de novo before a different magistrate. If, however, a magistrate recuses himself after he has convicted X, the case can be referred to a different magistrate for sentence: Moyo & Ors HB-211-87.
If X person is in custody, he will be brought to court on the date which has been set down for his trial.
If X is out of custody, his attendance at his trial can be brought about in a number of ways.
- He can be summoned to appear:140 CPEA
- He can be warned by a magistrate to appear on a particular date, time and place to answer the charge: s 142 CPEA
- If a peace officer to on reasonable grounds that a magistrates court on conviction will not impose a fine more than level 3, he can give written notice to the person to appear in court at the date, time and place specified by the police to answer the charge and he with then be released: s 141 CPEA.
A person who fails to appear in court after receiving a deposit fine form, and who has not paid the deposit fine, can be treated in the same way as a person who fails to obey a summons.
If X fails to comply with a summons which has been properly served upon him, the prosecutor can request that a warrant for arrest be issued against him. When X is brought to court he can be fined up to level 3 or imprisoned for up to one month for his default: s 140(4) CPEA. This fine, however, must be imposed when he is brought before the magistrate. It cannot be imposed some time afterwards: Ncube HH-174-83 and Knight v Van Tonder & Ors 1962 R & N 405 (SR).
If X is out on bail, fails to appear and is arrested and brought to court, the judicial officer will order the forfeiture of his bail if the default was wilful or deliberate. (See under "Bail" above).
It is impermissible both to impose a fine and to order forfeiture of bail as this would amount to punishing a person twice for one offence: Sibanda (1) 1980 ZLR 413 (GD).
Section 70(1)(g) of the Constitution provides that a person charged with a criminal offence has the right to be present when being tried. This is not an absolute right. It is not one of the rights that in terms of section 86(3) may not be limited by law. Thus reasonable restrictions may be imposed upon this right in terms of section 86(2) of the Constitution.
The defence lawyer should be aware of the fact that in minor cases the trial can proceed in the absence of his client in certain circumstances
Section 357 CPEA allows proceedings in minor cases to be conducted in X's absence if he fails to appear on the trial date. The constitutionality of this provision is dubious in the light of s 18(3) of the Constitution, which requires that criminal trials are held in the presence of X unless he consents or so conducts himself as to render the continuation of the proceedings in his presence impracticable.
This section was relied upon in Kamanga HH-134-91. X had failed to appear in court after receiving a warning to appear in connection with a traffic ticket. The High Court said that in such a case the trial could go ahead without X. The court must, however, hear the evidence before convicting.
The defence lawyer must determine the mental fitness of his client to stand trial. When taking instructions it may become apparent to the defence lawyer that his client is acting in a manner which suggests that he is mentally disordered or intellectually handicapped. In such eventuality he should notify the Prosecutor-General’s office about this and ask that his client be given a psychiatric examination. The matter will then be dealt with in terms of s 27 of the Mental Health Act. The Prosecutor-General office will report the matter to a magistrate who must, within 24 hours of receiving the report, direct two medical practitioners (or one medical practitioner and one psychiatric nurse to examine the person to determine his mental state. After the receiving the medical reports, if the magistrate decides that the person is mentally disordered or intellectually handicapped and would not be able to understand the nature of any criminal proceedings, he can make various orders.
In respect of cases involving serious charges, he may order he be detained in an institution or, if he is a danger to other, that he be detained in a special institution.
In respect of charges which are not likely to merit imprisonment without the option of a fine or a fine not exceeding level 3, the magistrate may order the proceedings against the person to be stayed for a definite or indefinite period, and—
- order the person to submit himself for treatment in any institution or other place;
- the person’s guardian, spouse or close relative to make an application for the person to be received for treatment in any institution or place;
and give such directions for the person’s release from custody or continued detention or transfer to an institution or other place as he considers necessary to ensure that the person receives appropriate treatment.
Cases may arise where the client appeared to be mentally normal when his defence lawyer takes instructions but after the commencement of the trial the client starts to behave in a fashion which suggests that he is mentally deranged and incompetent to stand trial. The lawyer should draw this fact to the attention of the court and request that the court exercise its powers to order a psychiatric examination of the person to determine whether he is fit to stand trial. Such a case will be dealt with in terms of s 28 of the Mental Health Act. (In terms of s 192 CPEA, if at any time after the commencement of a criminal trial it is alleged or it appears that X is not of sound mind, the case must be dealt with under the Mental Health Act.) If it appears to the presiding judge or magistrate that the person on trial is mentally disordered or intellectually handicapped, the judicial officer must inquire into that person’s mental state. The judicial officer can adjourn the proceedings and direct two medical practitioners (or one medical practitioner and one psychiatric nurse to examine the person to determine his mental state. When the medical reports are received various courses of action are possible. Where the judicial officer is a judge he may
- order that the person be detained in an institution for a definite or an indefinite period; or
- if it appears to him that the person is a danger to others, order his detention in a special institution for a definite or indefinite period.
If the offence is an offence which is not likely to merit imprisonment without the option of a fine or a fine not exceeding level 3, the judge may order the proceedings against the person to be stayed for a definite or indefinite period, and—
- order the person to submit himself for treatment in any institution or other place;
- the person’s guardian, spouse or close relative to make an application for the person to be received for treatment in any institution or place.
Where the judicial officer is a magistrate, he may
- order that the person be detained in an institution; or
- if it appears to him that the person is a danger to others, order his detention in a special institution.
If the offence is an offence which is not likely to merit imprisonment without the option of a fine or a fine not exceeding level 3, the judge may order the proceedings against the person to be stayed for a definite or indefinite period, and—
- order the person to submit himself for treatment in any institution or other place;
- the person’s guardian, spouse or close relative to make an application for the person to be received for treatment in any institution or place.
When X has recovered from the mental condition, he can then be made to stand trial.
In Yusuf 1997 (1) ZLR 102 (H) the court stressed that a person on trial for a criminal offence must be given a full opportunity to give evidence in his defence and to call such witnesses as he may wish. This right is laid down in s 18(3)(e) of the Constitution and is a fundamental principle of natural justice. Section 18(3)(e) provides that the accused is entitled to obtain the attendance of witnesses on the same conditions as those applying to witnesses called by the prosecution. This includes the right to the subpoenaing of reluctant witnesses.
The method of securing the attendance of defence and State witnesses is the same. One way in which witnesses are notified that they are required to attend court to give their evidence is by serving them with subpoenas.
If a witness has been served with a subpoena to appear in the court named at the particular date and time and he fails to appear, he can be punished under s 237 CPEA. (The word subpoena in fact means "under punishment".)
If he decides to act under this section, the prosecutor will hand the magistrate the return of service of the subpoena or he may prove service by calling evidence on oath. He will then apply for a warrant of arrest. On the arrest of the witness, the court can enquire summarily into the reasons for his non-appearance and may fine him or imprison him if he has no valid reason for his default.
A witness can also be served with a special type of subpoena, namely a subpoena duces tecum, which requires the witness to produce a specified document or thing. If the witness disobeys this subpoena he can be dealt with under s 233 CPEA.
The court may warn a witness who is in court that he is to attend court on a particular date and a particular time. Failure by such a witness to obey the warning may be treated as contempt of court.
The police are also empowered to warn witnesses to attend court on a particular date and a particular time to testify.
In order for justice to be seen to be done, criminal proceedings are normally held in public. The public are entitled to attend criminal trials and the press are entitled to report on criminal proceedings so that the public can assure themselves that the processes of justice are fair and that persons found guilty of criminal offences are appropriately punished.
In Zimbabwe criminal proceedings are only held in camera in exceptional circumstances for valid and justifiable reasons. Indeed the Constitution lays down that, subject to certain specified exceptions, all court proceedings must be held in public and the outcome of trials must be publicly announced.
Normally defence counsel should oppose applications by the State for the holding of criminal proceedings against their clients in camera if they consider that this will be prejudicial to their clients. On the other hand, defence counsel should themselves apply for the holding of the proceedings in camera where the holding of public proceedings would be likely to be prejudicial to their clients such as where their clients are young persons under the age of 18.
Section 3(1) of the Courts and Adjudicating Authorities (Publicity Restriction) Act sets out the exact powers of the courts to order the exclusion of persons (except parties to the proceedings and their legal representatives) from the proceedings. It also sets out the powers of the court to place restrictions on the disclosure of information pertaining to the proceedings.
The grounds upon which these powers may be exercised are set out in s 3(2). Essentially the court can use these powers if it considers this to be necessary or expedient to protect these interests:
- public safety;
- public order or public morality;
- the economic interests of the State;
- the welfare of persons under the age of eighteen years;
- witnesses who believe on reasonable grounds that harm will befall them or their families if it is known that they have given evidence,;
- the lives of persons related to or connected with any person concerned in the proceedings.
These powers can be exercised on the court's own initiative or on application from one of the parties to the proceedings.
Additionally the responsible Minister has extensive powers to prohibit publicity and disclosure of information regarding different aspects of criminal trials where it is not in the public interest that there be such publicity or disclosure.
Section 31 of the Constitution provides:
The State must take all practical measures, within the limits of the resources available to it, to provide legal representation in civil and criminal cases for people who need it and are unable to afford legal practitioners of their choice.
Section 70(1)(e) of the Constitution provides that an accused person has the right “to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result.”
Section 10 of the Legal Aid Act provides for the provision of legal aid in certain criminal cases. Where a judge or magistrate or to the Prosecutor-General believes that it is in the interests of justice that an accused person be provided with legal aid and that person may have insufficient financial means to engage his own lawyer, can recommend to the Director of the Legal Aid Directorate that the person should be provided with legal aid. He will decide whether to provide legal aid to such person after assessing that person’s financial means.
The practice is that in all murder cases and in other very serious cases in the High Court so-called pro deo lawyers will be assigned. As pointed out earlier in reference to duties of lawyers, lawyers assigned to represent such clients have a duty to represent such clients diligently and professionally despite the fact that paltry fees are paid for such work. (For further discussion on this duty, see Section 1 Role and Responsibility of Defence Lawyers - Duty to Client)
Where persons are implicated in the same offence they may be tried together: s 158 CPEA. Thus, where a number of persons committed a crime, they can be tried together; accomplices can be tried with the principal offender; and accessories (after the fact) can be tried with the principal offender.
However, the holding of joint or mass trials of persons whose alleged offences are unconnected is totally irregular. Joint trials are permissible for persons charged with different offences where the requirements of s 159 CPEA are satisfied. This section allows for the holding of joint trials where different accused, not acting together, commit different crimes at the same place and at about the same time and the prosecutor informs the court that there is admissible evidence which will be common to the different charges. Thus, if a number of persons, not acting in concert, have all stolen maize from the complainant at around the same time, it would be appropriate to allow the joint trial of X to save the complainant being called on numerous occasions to state that the property was stolen from him.
In Kachipare 1998 (2) ZLR 271 (S), X and Y were jointly charged with the murder of a newly born child. On appeal, it was argued that the trial judge should have ordered a separation of trials. Held, that because neither the prosecutor nor counsel for the appellant applied for a separation of trials, the judge could not order a separation mero motu. The power to order a separation is pre-conditioned by the making of an application.
In Ngwenya & Anor v Ndebele NO & Anor 2010 (1) ZLR 457 (H) the court pointed out that a separation of trials may not be ordered by the court mero motu; an application must be made by the prosecutor or one of the accused. If no such application is made, it is not an irregularity if the court does not mero motu order a separation and there would be no grounds for review arising from the failure to order a separation. If an application is made, the court has a discretion as to whether to order separation of trials. There is no rule of law that separate trials should be ordered where an essential part of one accused person's defence amounts to an attack on a co-accused; this would be a matter is one which the court should take into account in determining whether to order separate trials or not. It is not correct to say that, where co-accused persons incriminate each other, even where there is no desire to use the evidence of any of them against the other, a separation of trials should be ordered.
The trial starts off with the reading of the charge. In the High Court the charge is contained in a document called an indictment; in a magistrates court the document is called a summons or charge sheet. In the following discussion the word “indictment” will be used, but the rules are the same whether the document is an indictment, a summons or a charge sheet.
In all cases the charge must be clearly and correctly formulated and properly laid. The offence must be properly described and adequately particularized. If it is not, the defence lawyer can except to the charge.
Where the charge is a statutory one, the defence lawyer must be check to ensure that the correct section of the Act or Statutory Instrument has been cited, and that the particulars correspond with the provision itself. The defence lawyer can except to the charge if these requirements are not satisfied: Chamurandi HH-182-86; Vhere HH-211-86; Zvinyenge & Ors 1987 (2) ZLR 42 (S).
It was pointed out in Siphambili 1995 (2) ZLR 337 (S) that if the indictment is deficient in particularity that deficiency would not necessarily be fatal. The test was whether it would prejudice the accused. Unless time is of the essence of the charge, it is sufficient if the day or period alleged in the charge falls within a period of three months before or after the commission of the offence: s 173 CPEA. The court decided that any embarrassment which might have resulted from the inaccuracy in the charge should have been raised before plea, as a request for further particulars or as an exception. If the defence does not object before plea to the lack of particularity in a charge which discloses an offence, then the defence cannot rely on the defectiveness of the charge at the end of the trial: s 170 CPEA.
It was made clear in Sabawu & Anor 1999 (2) ZLR 314 (H) that it is the prosecutor's right to determine which charges to prefer and to ensure that the accused is charged with the correct offence.
The procedure when there is an exception to the charge is set out in s 171 CPEA. Defence counsel will usually except to the charge on his client's behalf before plea. If the exception is made before plea the court must deal with this matter first before requiring X to plead: 171(1) CPEA. This applies both to an exception on the ground that the charge does not disclose an offence and to an exception on the ground that the charge does not disclose reasonably sufficient particulars to inform X as to the nature of the charge against him as required by s 146 CPEA.
Section 178(1) of the CPEA Act gives an accused person the right to apply to the court, before pleading, to quash the charge on the ground that it is calculated to prejudice or embarrass him in his or her defence. Section 180(1) of the Act gives the accused person who considers that a charge is framed in vague language or that the particulars of the offence are not disclosed in a manner that enables him to answer the charge to except to it on the ground that it does not disclose any offence cognizable by the court. The magistrate is obliged to hear the exception and determine whether it is well founded. If the exception is well founded the magistrate has the power to dismiss the charge. See S v Mwonzora CC-17-16
However, if the exception succeeds, the State can be given the opportunity to re-draft the charge and the newly worded charge can then be put.
If the exception is dismissed, X will then be asked to plead.
If X pleads first and the defence lawyer then excepts to the charge, the court has the discretion whether to dispose of the plea or the exception first: s 171(2) CPEA.
Defence counsel may have agreed with the prosecutor that his client will plead guilty if he is charged only with a lesser offence than that with which he was originally charged.
However, the cases say that it is not in the interests of justice that a person should be charged with a lesser offence when the admitted facts show that he is guilty of a more serious charge. In such an event the trial court may query why X is being charged only with the less serious charge. Thus if the State allegations clearly suggest that X has committed the crime of assault with intent to do grievous bodily harm but the State has brought a charge only of common assault against X, the judicial officer is quite entitled to question the prosecutor on why the lesser charge has been preferred: Chidodo & Anor HH-215-88.
In the case of Thebe HB-16-06 the judge pointed out that while the prosecutor is dominus litis, this rule is not absolute. The trial court, as a trier of facts whose main object is to do justice between man and man, therefore has inherent powers to ensure that suitable charges are preferred against those who appear before it. It is, therefore, within its power to prevent the State from proceeding on a lesser charge where justice clearly requires a more serious one.
It is unfair that X be charged with two or more separate crimes in circumstances where he should have been charged with one crime because the conduct really only constitutes one criminal offence. Defence counsel should raise an objection where there has been improper splitting of charges.
In Zacharia 2002 (1) ZLR 48 (H) it was held that there are two tests for whether there has been an improper splitting of charges, the “single intent” or “continuous transaction” test and the “same evidence” or “dominant intent” test. The latter is related to the intention of the accused person as he performs several acts which are logically and intrinsically connected to the one offence which he then commits. The concern whether the criminal conduct is in reality a single conviction is aimed at avoiding prejudice to the accused where the duplication of convictions arises. If no prejudice is occasioned to the accused, then the question whether or not there has been a duplication of convictions becomes one of little or no consequence. The prejudice to the accused may be avoided by treating all the separate counts as one for the purposes of sentence.
Simply because several criminal acts form part of one related transaction does not mean separate crimes have not been committed and that there has been an improper splitting of charges.
There will, however, be an improper splitting of charges -
- if a person commits two acts, each of which standing alone would be criminal, but does so with a single intent and both acts are necessary to carry out that intention; or
- where the same evidence which is essential to prove one criminal act is also essential to prove another criminal act.
In both these instances, X should be convicted of only one crime: Peterson 1970 RLR 49; Chinemo 1985 (1) ZLR 32 (H).
Where the charging of more than one offence would constitute improper splitting, the State should charge the offence which represents the dominant purpose of X in engaging in that conduct: Jambani 1982 (1) ZLR 213 (H).
In Mupatsi 2010 (2) ZLR 529 (H) the court stated that the rule against splitting of charges (which could more aptly be described as a rule of practice against the duplication of convictions) was designed to prevent a duplication of convictions in a trial where the whole of the criminal conduct imputed to the accused constitutes in substance only one offence which could have been properly embodied in one all-embracing charge and where such duplication results in prejudice to the accused. Accordingly, where the accused, in pursuance of a dominant intention, commits a number of offences, the proper thing to do is to charge him with only that offence which was his dominant purpose. This does not mean that the test of "dominant purpose" is the only one to be applied; in some situations it may still be appropriate to charge the accused with more than one offence.
In Chikukwa HH-813-16 the judge pointed out that s 145 CPEA provides for what may be done when it is not clear which of several offences can be constituted by the facts proved. In that event, the accused may be charged with having committed all or any of those offences, and any number of such charges may be tried at one time; or the accused may be charged in the alternative with having committed some or one of those offences. The section has largely diluted the scope of the exception which an accused can take based on an alleged splitting of charges. It allows great latitude to the State to charge various offences, whether separately or in the alternative, arising from one act or series of acts or where facts are uncertain as to what charge exactly to put to the accused in the indictment. The objection to a splitting of charges may well have become academic in view of the provisions of the section.
One of the reasons for the rule against splitting of charges is that the rule is intended to protect the accused from being unduly prejudiced due to a multiplicity of convictions arising from one continuous conduct, in that the accused would then have to be sentenced on each charge. This can be cured by taking the counts as one for sentence.
The test for determining if there has been a splitting of charges is not a rule of law but of logic and common sense. The facts of each case must be considered on their merits in order to achieve fairness towards the accused. The application of the practice and tests should not lead to fettering the authority of the Prosecutor General to bring to court against the accused the charges which, on the evidence available, the accused should answer to.
· Cases in which court found that there was splitting
Mhandu 1985 (1) ZLR 228 (S): an improper splitting to charge X with three separate offences of "statutory rape" where he had had sexual intercourse with the under-age girl on three separate occasions during one month.
Tugwete HH-672-87: where a person drives a motor vehicle without footbrakes and a handbrake he commits a single offence not two offences.
Matimba 1989 (3) ZLR 173 (S): an improper splitting to charge breach of the various duties under s 61 of the Road Traffic Act (failing to stop, failing to attend to injured persons, and so on) as separate offences.
· Cases in which court found that there was no splitting
In Peterson 1970 RLR 49 The accused stole a car and later abandoned it but burnt it to prevent the discovery of any finger prints in the car. The accused were correctly convicted of both theft and malicious injury to property because, although the offences were related and formed part of one continuous transaction, there was not a single intent and the evidence of theft was not essential to prove malicious injury to property. (The related nature of these crimes could nonetheless be taken into account for the purposes of sentence.)
In Maniko & Anor HH-44-91 the review judge decided that in neither of two cases had there been improper splitting. In the first a person had properly been convicted of two counts of assault where he had assaulted one person and had then assaulted another who had tried to intervene. In the second X had properly been convicted of two counts of stock theft where X had stolen cattle from two people at the same place but an hour apart.
· Other cases
Frank 1968 (2) RLR 257 (assault and malicious injury to property); Attorney-General v Jakubec 1979 RLR 267 (excessive blood alcohol and negligent driving); Lamont 1977 (1) RLR 112 (incitement and substantive offence incited); P & Ors 1976 (1) RLR 142 (GD) (possession of arms of war and act of terrorism); Tebie & Anor 1965 RLR 198 (robbery and theft); Simon 1980 ZLR 162 (GD) (robbery and impersonation of policeman).
In Kurotwi & Ors (1) 2011 (1) ZLR 185 (H) ruled that s 76(4)(c) which applied to all courts, clothes the Attorney-General with an unfettered absolute discretion to withdraw criminal proceedings he has instituted at any stage of the proceedings. Once the Attorney-General has decided to exercise his discretion under that section, no person or authority, including the courts, can question his decision in this respect. It the prosecutor decides to withdraw the charge, the court must accept that decision. It does not matter whether or not the withdrawal is before or after the plea.
If the State withdraws the charge before plea, no verdict is entered and the State is at liberty to bring X back to court at a later date on the same or a different charge. The State may decide to withdraw the charge before plea for a variety of reasons such as illness of a vital witness or delay in securing important evidence. This is a matter of discretion and where the State has decided to withdraw the charge before plea, the defence cannot demand that the charge be put before withdrawal. The Attorney-General has an unfettered discretion to withdraw charge before plea at any time and institute proceedings afresh: In re Kwenda 1997 (1) ZLR 116 (S).
Once X has pleaded he is entitled to a verdict (s 180(6) CPEA), and if the charge is withdrawn after plea the court must enter a verdict of not guilty: s 9 CPEA. Where prosecutor withdraws after plea, the effect is that the court has no power to continue with the trial thereafter: Chari 1998 (1) ZLR 180 (H)
The prosecutor may make the decision to withdraw where the case against X runs into problems and it appears unlikely to succeed. In these circumstances the prosecutor may withdraw the charge in order to avoid wasting the time of the court. Sometimes the prosecutor takes this course as a result of a suggestion from the defence lawyer. While it is perfectly in order for a defence lawyer to make such a suggestion during an adjournment, the same cannot be said of whispered comments made to the prosecutor in court.
In Kurotwi & Anor (2) 2011 (1) ZLR 208 (H) the accused were indicted for trial before the High Court on a charge of fraud together with three others. The charges against the other three were withdrawn before plea. The accused were then served with a fresh charge and summary of the state case, different from those served on them by the magistrate at the time they were indicted to the High Court for trial. They objected to pleading to the fresh charge, arguing that it was improper and irregular for the prosecutor to prefer charges different from those upon which they were committed for trial without first seeking the leave of the court to do so. They argued that they had prepared their defence on the basis of the original charge, and it was therefore prejudicial for them to plead to the fresh charge which was based on a different set of facts, although the charge remains fraud. It was further argued that the original charge was framed in such a way as to omit an essential element which had since been incorporated into the fresh charge. Finally, it was argued that after the indictment it was incompetent for the state to unilaterally amend, substitute or vary the charge and summary of the state case without the leave of the court at a time when the trial was already pending before this court. The court held that in terms of s 202 CPEA where a need arises to amend the charge in the course of a trial, it is only the court which can authorize the amendment, after considering the question of prejudice. Here, the amendment was unilaterally made by the state before plea but after committal for trial in terms of s 168 of the Act. Once the accused had been indicted, the High Court was seized with the matter and all procedures relating to the trial of the accused were firmly under the direction and control of the court. The accused is entitled as of right to demand that he be tried on that charge. The state is not at large at that stage to alter, amend or substitute the charge without the court’s permission. While, in terms of s 320 of the Act, the Prosecutor-General has a right to withdraw a charge before plea and prefer new charges against an accused person, the condition precedent is that he must first withdraw the original charges against the accused before he can proceed to prefer fresh charges against the accused. In the present case, a new charge could not be brought because the original one had not been withdrawn. If the prosecutor wants to amend the charge, then he must apply to the court and the court will make a determination. If he wants to prefer new charges against the accused, then he must first withdraw the original charge before plea. It was up to the prosecutor which way to proceed.
In Kurotwi & Anor (3) 2011 (1) ZLR 251 (H) the accused were committed for trial along with three others, the charges against who had been withdrawn before plea. The State intended to use the three others as State witnesses against the accused and applied to amend the original charge before plea to incorporate this development.
The court held that the effect of s 137 CPEA is that, once the High Court is seized with the matter pending before it, all procedures relating to the trial of the accused are firmly under the direction and control of the court. Accordingly, although the State is dominus litis, it would have to apply for an order for the withdrawal of charges against the accused's co-accused before plea. It would be grossly irregular for the State to simply drop charges against the accused's co-accused without first obtaining a court order to that effect. The situation cannot be different when it comes to the amendment of the charge before plea. Once an accused person has been served with an indictment and committed to the High Court for trial he is entitled, as of right, to demand that he be tried on that charge. The State is not at large at that stage to alter, amend or substitute the charge without the court's permission.
Generally speaking a party is entitled to make an amendment at any time before judgment, provided there is no prejudice to the other party. Here there was no prejudice to the accused which could not be cured by an adjournment to enable them to prepare their defence in light of the intended application. Sections 9 and 320(3) of the Act would seem, with respect, to give the Attorney-General, or the prosecutor acting on his behalf, the absolute right to withdraw a charge at any time before the accused has pleaded, and to lodge a fresh indictment or charge or to issue and serve a fresh summons for hearing before the same or any other competent court.
In Westgate Investments (Pvt) Ltd 2010 (2) ZLR 12 (H) the court ruled that where X has been committed for trial on a particular charge this charge can be amended and an alternate charge can be included provided that X is not prejudiced in his defence. The court referred in this regard to s 103 CPEA (This provision was repealed in 2006 and re-enacted in similar terms in s 65.)
In the case of Shand 1994 (2) ZLR 99 (S) it was pointed out that in terms of s 202(1) CPEA, a court may, in certain circumstances, amend a charge. This provision only allows the court to make corrections to the existing charge and it does not allow the court to substitute a totally different charge. In any event in the present case there was a possibility of prejudicing the appellant if the Appeal Court allowed the substitution of a new charge.
The general rule is that the prosecutor is the dominus litis and has the prerogative to prefer charges against the accused. Sabawu & Anor 1999 (2) ZLR 314 (H).
However, this rule is not absolute. In the case of Thebe HB-16-06 the judge pointed out that while the prosecutor is dominus litis, this rule is not absolute. The trial court, as a trier of facts whose main object is to do justice between man and man, therefore has inherent powers to ensure that suitable charges are preferred against those who appear before it. It is, therefore, within its power to prevent the State from proceeding on a lesser charge where justice clearly requires a more serious one.
It is not in the interests of justice that a person should be charged with a lesser offence when the admitted facts show that he or she is guilty of a more serious charge. In such an event, the trial court should at least query why X is being charged only with the less serious charge. Thus if the State allegations clearly suggest that X has committed the crime of assault with intent to do grievous bodily harm but the State has brought only a charge of common assault against X, the magistrate should question the prosecutor on why the lesser charge has been preferred. Similarly, the magistrate should query why a person has only been charged with contravening s 45(1) of the Road Traffic Act [Chapter 13:11] if the evidence discloses a contravention of s 46(1) of this Act: Chidodo & Anor 1988 (1) ZLR 299 (H).
At the start of the trial X is asked how he pleads. X must personally plead to the charge; his or her lawyer cannot enter a plea on his behalf.
If X pleads guilty, after the court has checked that X is genuinely and correctly admitting the charge, the court can then find him guilty as charged and sentence him.
If he pleads not guilty, the case then goes for trial.
If X refuses to plead at all or refuses to answer directly and unequivocally to the charge, a plea of not guilty may be entered. X’s defence lawyer should obviously advise his or her client to make an unequivocal plea to the charge.
Where X is legally represented, the court itself does not have to explain to X the charge, its essential elements and the acts or omissions upon which it is based. These explanations would be necessary with an unrepresented X. Instead, the court can rely upon a statement by X's legal representative that these things have been fully explained by him to X and that he understands them and is admitting to them: proviso to 271(2)(b) CPEA.
Defence counsel will be asked whether the guilty plea is in accordance with his instructions from his client. The court will ask if he explained all the essential elements of the crime to his client and if the client is admitting to all these elements.
In a murder case, the client must plead and the defence lawyer must not plead for him.
Even if the client wishes to plead guilty to the murder charge defence counsel must explain to him that the practice is that even where X pleads guilty the court will always enter a plea of not guilty to murder and require that the State establish X's guilt in the normal way. Of course the court can take into account the words spoken by X when he was called upon to plead. Nangani 1982 (1) ZLR 150 at 154B.
Even though the defence lawyer knows that the practice is automatically to enter a plea of not guilty, he may want to include the admission in the defence outline. He will advise his client to plead guilty if his client has instructed him that he wishes to make a clean breast of it and admit his guilt. A candid admission of guilt, linked up with other factors, may tip the balance in favour of extenuation when it comes to sentence, so it may be critically important that, at the outset, X's admission of guilt is indicated.
These sorts of pleas should not arise in cases where X is legally represented, because the lawyer should have clarified matters and advised the client upon the correct plea on the basis of his instructions. For example, in a case of receiving of stolen property, the lawyer will have clarified whether or not the client was aware the property was stolen. If the client was unaware of this, the lawyer will advise him to plead not guilty. Thus this type of ambiguous plea should not be made: "I suppose I'm guilty. I agreed to look after my boyfriend's bike and he's now been arrested for stealing it."
A person may only be tried once in respect of a crime. If he has previously been tried and either acquitted or convicted for that crime, he cannot be tried again for it: s 180(1)(c) and (d) CPEA. The terms autrefois convict and autrefois acquit which are used in the cases are not used in the CPEA. A plea that he has been tried previously must be dealt with as a preliminary matter before any evidence is led. The question is whether the facts necessary to support a conviction on the current charge are the same as those in the previous case: Ndau 1971 (1) SA 668.
For the plea to succeed, X must show that he was “in jeopardy” (i.e. in danger) at the previous trial of being convicted of the charge that he now faces, or a substantially similar charge, i.e. that he was previously tried:
- on substantially the same charge;
- by a court of competent jurisdiction;and
- he was convicted or, if he was acquitted, that the acquittal was on the merits.
X must show that he was in jeopardy of being convicted of the charge which he now faces. In all such cases, it is the substance and not the mere form of the charges that must be looked at: the question is whether the charges are substantially the same.
In Moyo HB-18-84 X raised the defence of autrefois acquit. He had previously been convicted of unlawful possession of a firearm. He had thereafter continued to possess it without a firearms permit. The question was whether he could be tried again for this offence arising out of his continued unlawful possession. The answer was that he could be, since the possession since the previous conviction was a new set of facts.
In Gore 1999 (1) ZLR 177 (H) the court held that for the purposes of a criminal charge the payment of a deposit fine is prima facie an unequivocal acknowledgement of guilt and when an acknowledgement of guilt and a deposit fine is confirmed by a magistrate, the offender will stand convicted and sentenced by a court. He cannot be convicted again in respect of substantially the same offence, as this will violate the autrefois convict rule.
Section 180(2)(c) does not preclude a new trial where the previous conviction has been set aside by reason of irregularity. See s 18(6) (a) and (b) of the Constitution. In such cases a re-trial may be proper because the previous proceedings have been set aside or a re-trial has been ordered: Manera 1989 (2) ZLR 92 (S); Mlauzi S-48-92.
Other pleas which can be raised are that the court does not have jurisdiction to try the case or that the prosecutor has no title to prosecute: 180(2)(f) and (g) CPEA.
There can also be a plea that he has already received a pardon from the President for the offence charged: s 180(2)(e) CPEA.
If X pleads guilty to a lesser crime than that which is charged, it is for the prosecutor, not the court, to decide whether or not to accept the plea. If the prosecutor accepts the plea, X can be convicted of that lesser crime; if the prosecutor declines to accept the plea, a plea of not guilty is entered and the trial proceeds. Where the facts indicate the commission of the crime charged, the State and the court should not accept a plea of guilty to a lesser offence merely to save time: Mahango HH-132-87.
After X has pleaded guilty before one judicial officer and been found guilty by him on the basis of the plea, the proceedings may have been adjourned for some reason. If X then decides to change his plea, another judicial officer is permitted under s 180(6)(ii) CPEA to hear an application to change his plea, provided that no evidence has been adduced at the first hearing: Dube & Anor S-126-89.
If X makes an application to change his plea during the course of the enquiry in terms of s 271 CPEA following a plea of guilty, but before verdict has been delivered, there is no onus on X to convince the court of the truth of his explanation why he wishes to change his plea: Haruperi 1984 (1) ZLR 258 (H).
Sometimes a defence lawyer may have been engaged to represent X who has already pleaded guilty. Sometimes X may wish to change his plea on such grounds as that the police forced him to plead guilty because of threats or that they induced him to plead guilty by telling him he would only be released on bail if he pleaded guilty or by informing that he would receive only a light fine if he pleaded guilty.
Not infrequently there are delays in bringing a case for trial; the case gets remanded on several occasions and then, when finally it comes up for trial, the State requests yet another postponement because, for instance, the State witnesses have failed to attend. These cumulative delays may be so unreasonably long that the defence may apply for further proceedings to be stayed on the grounds that his client has not been tried within a reasonable period of time as required by s 18(2) of the Constitution. Alternatively, the defence lawyer can ask the prosecutor to allow his client who is pleading not guilty to plead to the charge before the case is further postponed so that if the State later decides to withdraw the charge the court will then record a verdict of not guilty and the matter will end there. If on the other hand the State withdraws the charge before plea then X can later be charged again with the same offence. However, the ultimate decision whether to withdraw a charge before or after plea lies with the State and the court has no power to order the prosecutor to put the charge to X in order that he plead thereto. See Prosecutors Handbook pp 132-133.
If X pleads not guilty, or a plea of not guilty is recorded because he refuses to plead to the charge or to plead directly thereto, the next stage is to call upon the prosecutor and the defence to give their outlines: s 188 CPEA.
The prosecutor will first be called upon to make a statement outlining the nature of his case and the material facts upon which he relies.
The defence lawyer will then be requested to make a statement outlining the nature of his defence and the material facts on which he relies. If at this stage the defence fails to mention any fact relevant to the defence which, in the circumstances existing at the time, it could reasonably have been expected to have mentioned, the court may when determining the guilt of X for the offence charged or any other crime which he may be convicted of on that charge, draw adverse inferences from this failure and the failure may be treated as evidence corroborating any other evidence against him: s 189(2) CPEA
The State and defence outlines do not constitute evidence; they are merely a summary of the evidence which each side intends to produce during the course of the trial: Nyandoro S-114-87.
Before defence counsel calls and examines his or her own witnesses, he or she will first cross-
examine the witneses called by the State.
This is the process of questioning of witnesses by the other side after the testimony has been adduced in the examination-in-chief.
The purpose of cross-examination is to try to get the witness to add to, alter, qualify, amend or retract evidence given, to discredit his evidence and to elicit from him evidence favourable to the party cross-examining. Most cross-examination has one or both of these goals: to elicit testimony favourable to your own case and to expose weaknesses in your opponent's case. However, as James Morton points out, the best that the defence lawyer normally can achieve is to be able to point to so many major discrepancies in a witness’s testimony as to prove that he is shown to be a thoroughly unreliable witness whose testimony is not to be believed. It is only in American films of the 1940s and, more recently, in poor soap operas that a witness will end by gasping, "Yes I did it! It wasn't your client."
The defence lawyer will be looking to pick holes in testimony of State witnesses and to catch them out in contradictions. In order to do this, he must keep track of what have said. He does not necessarily have to put all contradictions to the witnesses themselves; he can highlight inconsistencies when summing up.
Leading questions are allowed in cross-examination and the court should normally allow greater latitude than in examination-in-chief to the questioner, particularly where the questioner is an undefended accused. However, in Musindo 1997 (1) ZLR 395 (H) the court pointed out that it is a salutary practice and properly professional for a legal practitioner to refrain in cross-examination from putting as a fact any proposition unless he has instructions to that effect or has laid a foundation in fact for drawing the conclusion which he put to the witness. Gratuitously to suggest to a witness that he or she is lying, when there is no basis upon which to contradict the witness, is misleading and unprofessional.
Thorough advance preparation and planning on the lines of questioning to be pursued when cross-examining State witnesses is vitally important. Careful thought should be given to what the defence hopes to achieve by particular lines of questioning. If, for instance, the State case rests upon identification evidence, questions should be composed which will test and, if possible, cast doubt on the accuracy of the identification. In High Court cases the State is obliged to give summaries of what State witnesses will say when they testify. Study the State evidence carefully and consider what each witness will be likely to say when giving direct evidence. Identify any facts to which the witness may testify that are consistent with the defence case or facts which are inconsistent with the State case so that these matters can be highlighted during cross-examination. When the State case is put to X at the time that the defence lawyer takes instructions from him, X may well say things which provide ammunition for effective cross-examination of the State witnesses. For example, X may have pointed to facts which show that a particular witness has a grudge against him and may thus have a motive for giving false testimony against him. This fact can then be put to the witness during cross-examination. By such advance planning the defence lawyer is able to prepare questions which will be likely to assist his client's case and to avoid using the shotgun technique frequently employed in our courts where questions are asked on a random and indiscriminate basis which will often lead to answers prejudicial to the client's case.
In preparation for a serious and complex case James Morton says that what he calls “role playing” can be very useful. The lawyers in a firm can discuss what questions to ask witnesses. One of them can take the role of the advocate and another that of the witness. They can then try to work out the various permutations which can arise when a witness is cross-examined. It is good practice to use this technique if it is thought that a witness may deliberately try to be difficult. If there is no-one with whom the lawyer can play out the roles, he should still try to envisage the various answers a witness can possibly give. The line of questioning, depending on the answers which may be forthcoming, can then be worked out. Even after such assiduous planning, however, witnesses will from time to time come up with unexpected answers under cross-examination and the defence lawyer will have to think quickly how to continue his cross-examination.
Morton also advises that, if possible, the lawyer should try to go and inspect the scene of the alleged crime before the hearing. It is far easier to examine and cross-examine from a position of knowledge rather than relying on what you have been told, possibly inaccurately. This is particularly true in motoring cases where sometimes the police accident plans are far too sketchy or are misleading in certain vital details. The same will apply in street fights and theft from shops. An on-the-spot check will enable the lawyer to see what street lighting there is, if any, the position of the shelving in relation to the check-out in a supermarket, and so forth. He can also ascertain if it would have been possible for a witness to have been able to have seen the event from a particular location.
Morton further advises defence lawyers to keep their questions short, concise and easily understandable. They should not use long words to display their erudition as these words will often only confuse the witness. Avoid using technical terms in questions which the witness will not be able to understand. Refrain from using compound questions, that is questions which have several parts and which require a number of answers. Do not wrap up several questions into one and then expect the witness to give a single "yes" or "no" answer.
Defence lawyers should ask too few questions in cross-examination rather than too many. Morton says that if the defence lawyer has obtained the answers he wants and his position is now satisfactory, he should not try and improve the position by one last question. All this may do is to give the witness the opportunity of reconstituting the case against his client. He advises the defence lawyer to think what there is to be gained and then think again before asking any more questions. He gives the example of the barrister in Britain who pushed his luck too far when defending client on drunk driving charge. The cross-examination of the arresting officer went as follows:
"You stopped the car and asked my client his name?"
"Which he gave perfectly properly?"
"And his address?"
"And you asked him to get out of the car?"
"And he did this perfectly properly?"
"So from the time you stopped him he had behaved in no way which could cause any criticism?"
"And then he got into the back of the police car?"
"Again perfectly properly?"
Counsel had laid a very solid foundation for client's argument that he was not drunk. But did not leave it here. He went on
"He sat down in the back next to the lady in a fur coat?"
"No sir, that was police dog Giles."
In any case, even in Britain, it is unusual for police cars to have ladies in the back in fur coats who were not being called to give evidence. It is strange that barrister did not have doubts about this question arising from his instructions.
Morton observes that it is often said that the defence lawyer should not ask any question to which he does not know the answer or at least can reasonably guess the answer. If the defence lawyer asks questions indiscriminately, he can end up getting answers which may well be damaging to his client's case. In reality, the defence lawyer will, from time to time, be obliged to ask a question to which he does not know the answer. Morton advises that the thought in the lawyer's mind before he asks a question to which he does not know the answer should be, "If, as I may, I get a wrong answer, will this be fatal to my client's case?" If the answer is "yes", then, however tempting it might be, the lawyer must not put that question.
As a general practice defence lawyers should be pleasant and courteous in dealing with a witness. Times when it is justifiable to get angry and raise one’s voice are rare. When State witnesses are giving their evidence-in-chief, the defence lawyer should try to evaluate the witnesses. Have they testified in definite and emphatic manner? Are they likely to stick to this testimony doggedly or have they testified in a way which shows they are uncertain about what happened. Is it likely that they will readily concede that they might be wrong? Are they likely to be co-operative in answering questions from the defence or is it likely that they will be hostile and un-cooperative with the defence and will the defence have to adopt a firm and possibly aggressive approach?
The failure to cross-examine a witness on any matter generally implies an acceptance of his evidence on that point. If the point is disputed the questioner would be expected to put questions to the witness suggesting that the witness is mistaken or is lying on that point. The defence lawyer needs to keep careful track of the evidence given by the various witnesses in order to draw attention to contradictions in the testimony of an individual witness and contradictions between the testimony of different witnesses.
If evidence has already been given or will be given subsequently which is to a different effect from that stated by the witness the effect of that evidence must be put to him in cross-examination to enable him to admit, deny or explain it.
A person may not cross-examine his own witness. During his testimony a State witness may say something in evidence which may mean that X has some defence. He might say, for instance, that X was very drunk. It is impermissible for the prosecutor vigorously to cross-examine his own witness on this point in order to rebut this aspect of the evidence of the witness. The judge or magistrate must stop the prosecutor if he does this, and if the judge or magistrate fails to take action the defence lawyer must object. If the prosecutor thinks that his witness has become hostile, he must apply to the court to declare him to be a hostile witness, and only after the witness has been so declared, is the prosecutor entitled to cross-examine him. This topic is dealt with more fully in the section on "Evidence - Inconsistent Previous Statements and Impeachment".
In Mukombe S-29-91 the Supreme Court severely criticised a lawyer for his manner of cross-examination of witnesses. He had cross-examined them in an unnecessarily abusive, aggressive, abrasive and bombastic manner. The Court stated that the legal practitioner's duty to promote his client's interests must never transcend his duty to the promotion of justice and truth. He has a paramount duty to the court as an officer of the court to ensure that this is achieved. Witnesses should not be treated in an abusive and immoderate way.
However, it is sometimes necessary to adopt a firm, even somewhat aggressive, approach when dealing with a hostile, uncooperative or facetious witness. The aggressive questioning should not, however, be carried out in an insulting and abusive manner.
In Ndoro S-185-89 the Supreme Court stressed that a legal practitioner should not assail State witnesses with accusations unless he can adduce some evidence to justify or substantiate the accusations.
A checklist, intended as a guide to planning and preparation for cross-examination, appears in the American book The Trial Lawyer's Book Preparing and Winning Cases by Purver et al (Laywers Cooperative Publishing New York 1990). This checklist is reproduced below with aspects omitted which do not have relevance in the context of Zimbabwean procedures.
- Determine what the witness knows or purports to know about the events in question. Do statements indicate that the witness has an incomplete recollection of the event? Do the facts indicate a lack of detailed knowledge, or defects in perception? Determine whether you will challenge the witness's competency to testify.
- Visit the scene of the events in question. Examine the purported action from the places where the witnesses claim to have been during the events. Where appropriate, evaluate the witness's visual perspective of the events at issue, measure distances, examine lighting, and draw detailed diagrams.
- Study potential exhibits.
- Carefully study [each summary of State witness testimony].
- Investigate the witness's background for evidence of bias, motive or interest. Focus on aspects of the witness's experiences and circumstances for evidence of ability to perceive, remember, understand, and communicate the facts about which the witness may be asked to testify.
- Review the evidence in the light of [what you know and think happened].
- Anticipate the examination-in-chief.
- Establish a goal for the cross-examination. Select the two or three most important issues on which the witness may advance your case.
- Determine what type of witness you will be questioning. [Aggressive questioning may be called for if the witness is a criminal accomplice but this sort of questioning would be entirely inappropriate for a gentle, dignified, elderly witness.
- Determine whether you intend to cross-examine the witness at all. Some witnesses are so good that it is best to let them alone.
Defence counsel may call witnesses to testify for the defence. He may also call X to testify in his defence.
The purpose of examination-in-chief is to elicit relevant and admissible evidence from the witnesses in a clear and orderly manner. Most witnesses are not familiar with the rules of evidence and it is therefore necessary for counsel to ask appropriate questions to ensure that only relevant and admissible evidence is given.
The defence lawyer should carefully plan the sequence of his questions. The aim must be to extract the evidence in a clear and systematic fashion. The questions should follow a logical sequence so that the evidence can be readily understood. If when asking questions the lawyer does not follow a logical order, the witness may become confused and the judge or magistrate will have difficulty in following and understanding the evidence of the witness. In one book the example is given of the irascible judge who said to counsel "Can't you put your case in some sort of order - historical, geographical, or if you can't manage that, why not try alphabetical?"
The best way of obtaining evidence is to allow the witnesses to give their own description of the events. After they have finished relating the events, questions can be put to clarify points. However, questions can be put to help the witnesses to relate their own version of events but the witnesses must not be told what to say or questioned in such a way as to suggest the answers to the questions. The questions posed should be kept short and clearly and simply formulated so that they can be readily understood by the witnesses.
Leading questions may not be put to witnesses during examination. A leading question is one which suggests the answer, such as “Do you not agree that what the accused did was dangerous?” The judicial officer has the duty to ensure that leading questions are not asked and that the prosecutor, defence lawyer or X does not end up cross-examining his own witness. It is accepted practice, though, that a witness may be led on facts which are not in dispute such as the witness' name, address, occupation, whether he is married and so forth. The extraction of this routine information by leading is far quicker than by the use of non-leading questions. Prosecutors will not object to these sorts of leading questions, but the defence lawyer can clear the matter in advance by asking if the prosecutor would object if the witness is led in respect of this sort of information.
As regards questioning of X by the defence lawyer, James Morton in his book Handling Criminal Cases says that because clients can be unreliable, it is essential to keep examination to a minimum. As regards weaknesses in the defence case, it is a vain hope that both the prosecutor and the court will fail to spot these. Thus it may be strategically better to put the less attractive points in his case to the client when he is being examined in order to soften the blow when he comes to be cross-examined.
There are some questions which X cannot legally be compelled to answer. These include such things as disclosure of communications between married people, communications between lawyers and clients and so on. The circumstances in which a person may not be compelled to answer questions are set out in ss 290- 297 CPEA.
If a witness steadfastly refuses to answer a question which he is legally obliged to answer (or to produce a document or thing which he is legally obliged to produce), the judicial officer should be asked to order the witness to answer the question (or produce the document etc) and warn him that if he refuses, he will be sent to prison. If the witness still declines, the judicial officer may, in terms of s 233(1) CPEA, adjourn the proceedings and order the committal of the person to prison for up to eight days. If at the resumed hearing the person persists in his refusal he can again be imprisoned for up to eight days. This process can continue until the person agrees to do what he has been ordered to do by the magistrate.
On the undesirability and dangers of leading questions from the prosecution see Musindo 1997 (1) ZLR 395 (H).
After a witness has been cross-examined, the party originally calling him may put further questions to him. There are, however, strict limits to the type of questions which may be put and the judge or magistrate must ensure that these limits are not exceeded by the questioner. Only questions relating to matters raised in cross-examination may be put; leading questions may not be put. New matters may only be introduced if the judge or magistrate grants leave to do so.
The judicial officer's role is to try to ascertain the truth. He is therefore entitled, indeed duty bound, to ask questions of both State and defence witnesses in order to clarify points and to ascertain the facts. Where the case involves an accused who is not legally represented, the judicial officer may often have to put questions to the witnesses so that facts favourable to X emerge. The judicial officer must not, however, assume the role of prosecutor or defence lawyer and put a barrage of questions to witnesses to try to ensure that X is convicted or acquitted.
In Denhere & Anor S-39-91 the Supreme Court found that although the magistrate had admittedly asked many questions of the defence witnesses and none of the State witnesses, none of the questions were improper. He had explained in his judgment that he needed to resolve all contradictions and also make it clear to those witnesses that, for good reason, he did not believe them, but was giving them a chance to convince him. He was simply probing the defence to ascertain the truth. He had not approached the trial with a closed mind regarding the possible innocence of the accused.
Where the judicial officer has descended into the arena in a manner which clearly shows that he is biased in favour of the State and that he is not prepared to give proper consideration to the defence case, the defence lawyer may be obliged, tactfully and politely, to ask the judicial officer to adopt a more balanced approach. In an extreme case the defence lawyer may even wish to ask the magistrate to recuse himself on the ground that he is biased and unable to conduct the proceedings impartially. The defence lawyer must, however, be very careful not to commit contempt of court by attributing bias to the judicial officer when he was simply exercising his discretion to question witnesses in order to clarify points.
See also Wright S-183-89 and Hove S-64-88.
Defence counsel should listen carefully to the judicial officer's questioning of the witness as the line of questioning often reveals how the judicial officer is thinking about the case. This questioning can thus suggest lines of questioning to defence counsel for subsequent witnesses to deal with the points raised by the judicial officer.
All statements made by accused persons outside the court (extra-curial statements) during investigations, including written and oral statements, confessions and statements made to the police on the way to places where indications are to be made or during the course of making these indications are admissible only if these statements were made freely and voluntarily and without undue influence: s 256 CPEA.
A prosecutor commits a fundamental irregularity if he includes in his outline of the State case the contents of any statement made by the accused. A statement made by the accused to a person in authority may not be admitted unless the court is satisfied that it was made freely and voluntarily and without undue influence having been brought to bear. This applies not only to formal written statements, but to anything said by the accused, including chit-chat on the way to the scene of the crime. A police officer may not give evidence of any such statements unless he first satisfies the rules about admissibility: Nkomo 1989 (3) ZLR 117 (S).
The method of production of X's statement depends upon whether or not the statement has previously been confirmed before a magistrate.
A statement which has been confirmed by a magistrate under s 113 CPEA must be admitted by the court into evidence on its mere production by the prosecution without any further proof under s 256(2) CPEA. If X challenges the admissibility of the statement the onus is upon him to prove its inadmissibility.
If the statement has not been confirmed before a magistrate and X challenges the admissibility of that statement, a trial within a trial must be held to determine the admissibility of the statement. The statement may not be admitted into evidence until the State has proved that it is admissible.
If X denies making a statement to the police, the making of the statement becomes a factual issue. The prosecutor will have to call the police officers who recorded the statement to prove that X did indeed make the statement. X or his lawyer is entitled to cross-examine these police witnesses. (The defence is entitled to cross-examine any defence witness.)
If X admits that he made the statement, but asserts that the statement was not made freely and voluntarily, the prosecutor will have to call evidence usually the police officers who interrogated X and who recorded his statement, in order to try to prove that the statement was freely and voluntarily made.
See The Prosecutor’s Handbook p 107.
The correct procedure for producing an unconfirmed statement is as follows:
1. When a policeman is giving evidence and is about to relate what X said to him, he should say ' The accused made a statement to me.'
2. He should then stop. If he does not stop, he should be stopped. If the prosecutor does not stop him, the magistrate should.
3. If he says, 'The accused then admitted...', he should be stopped at once, told of his error, and the magistrate should record 'the accused then made a statement' to this witness.
4. The prosecutor should then ask the witness the standard questions-
a) Was the X in his sound and sober senses at the time?
b) Did he make the statement freely and voluntarily?
c) Was any undue influence brought to bear on him to make the statement?
5. The prosecutor should then say to the Court, 'The State proposes to tender this statement in evidence', or words to that effect.
6. If all the questions set out in 4. have been answered satisfactorily, the Court should then ascertain from the accused whether he wishes to challenge the admissibility of the statement, and should explain, if he is not represented, what is meant by challenging its admissibility.
7. If the accused does not challenge, the witness may then be invited to produce the written statement or recite the oral statement, as the case may be.
8. If the accused does properly challenge the admissibility of the statement, then a trial within a trial must ensue if the prosecutor still wishes to produce the statement.
See BC & Anor HH-255-84.and Nkomo & Anor 1989 (3) ZLR 117 (S). See also The Prosecutor’s Handbook pp 104-105 which sets out the questions that the prosecutor should ask the policeman when seeking to produce an unconfirmed statement.
At a trial within a trial resulting from a challenge to an unconfirmed statement the procedure is as follows:
The prosecution first calls its evidence. The defence may cross-examine the State witnesses. The defence then calls its evidence and the State may cross-examine the defence witnesses. Counsel may then make submissions and the judicial officer makes a ruling on the admissibility of the statement. In a High Court case the assessors will not be present at the trial within a trial
The defence lawyer can challenge any statement or indication made to the police by his or her client on the basis that the statement was not made freely and voluntarily.
The same rules as to admissibility apply to all statements made by the accused, whether oral or in writing, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other). These rules also apply to indications made to the police.
If X challenges the statement on the basis that the statements were extracted by duress or the indications were made as a result of duress, the presiding judicial officer must hold a trial within a trial to determine whether the statements were freely and voluntarily made and whether the statements or indications are admissible.
In terms of s 256 CPEA a statement made by X to the police, or to a person in authority over him such as an employer, is not admissible unless it was made "freely and voluntarily without his having been unduly influenced thereto." Statements are thus not admissible if they have been extracted by the use of force or by offering incentives such a release from custody. The reason why such evidence is not admissible is that a statement made in these circumstances will be unreliable.
A statement will be inadmissible on the grounds that it was not made freely, voluntarily and without undue influence where X made the statement because
- he was tortured, beaten up or physically maltreated in some other way such as by being deprived of sleep or food and drink for long periods or by being kept in the dark in solitary confinement for long periods; or
- he was threatened with death or with torture or physical brutality unless he made the statement; or
- he was told that dire consequences would befall members of his family unless he made the statement; or
- he was offered some benefit or advantage if he confessed to the crime, such as that he would be released from custody or that he would receive only a light sentence such as a fine; or
- he had been kept in solitary confinement for a long time and no one had been allowed to visit him and he could not bear this isolation any longer; or
- he had been denied access to his lawyer after requesting such access and had been pressured into making a statement in the absence of his lawyer; or
- he had been subjected to such intensive, hostile and prolonged questioning that his freedom of volition had been overborne as a result of the psychological pressure applied to him;
See Ananias 1963 R & N 938 (SR); Hlupe 1964 RLR 333 (GD); Murandiwa 1951 R & N 271 (SR); Michael & Anor 1962 R & N 374 (H); Dube 1965 RLR 177 (RA); Hackwell 1965 RLR 1 (RA); Edward 1966 (2) SA 359 (R); Mfungelwa 1967 RLR 308; Schaube-Kuffler 1969 (1) RLR 78 (A); Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S); Mthombeni S-80-90; Nkomo & Ors 1989 (3) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).
In any case where a client has allegedly been subjected to physical abuse leading to the extraction of prejudicial information, the legal practitioner should request the trial court to hold an exhaustive inquiry into the allegations. In Makawa & Anor 1991 (1) ZLR 142 (S), it was held that although allegations of police mistreatment are commonly made and are often found to be spurious, the frequency with which they are made justifies that a thorough investigation be made. When an accused person stands in jeopardy of a criminal conviction if a confession made as a result of mistreatment is accepted, it is incumbent on the judicial officer to investigate to the fullest extent the veracity of the allegations.
In the case of Woods 1993 (2) ZLR 258 (S) the Supreme Court commented upon the effect of refusal of the police to allow access by prisoners to their lawyers. It said that the court cannot condone a blatant refusal of access to their lawyers of prisoners held in police custody. Such refusal violates the fundamental right granted by s 13(3) of the Constitution and brings the administration of justice into disrepute. Where there has been a wilful and flagrant denial of access, this will warrant the exclusion of evidence in any extra-curial statement or indication made prior to the allowing of access to the lawyers.
On the other hand, confrontation by the police does not amount to duress Confrontation is a permissible element of police interrogation procedures, provided it is not improper or persistent. It is not improper to tell a suspect that his co-accused has confessed where that indeed has happened, nor is it improper for the police to tell the suspect that they know about an incident connected with the alleged crime. See Nkomo & Anor 1993 (2) ZLR 131 (S)
As regards indications made by X to the police in Ndlovu 1988 (2) ZLR 465 (S) the court commented upon the provision now contained in s 258(2) CPEA. This section renders admissible anything that was pointed out by the accused or any fact discovered in consequence of information given by the accused, even if the pointing out or information forms part of a confession or statement that is not admissible. The section does not, however, render admissible the statements or remarks made by the accused while he or she is pointing out the object or scene in question, nor does it cover statements he may make on the way to the scene. If the police wish to give evidence about what the accused said in these circumstances, he must be given the usual opportunity to say whether or not he made the statements freely and voluntarily and without undue influence. If he puts the matter in issue, and if the statements have not been confirmed, there must be a “trial within a trial”.
In Mazono & Anor 2000 (1) ZLR 347 (H) the accused stated at their trial that indications made by them to the police were made under duress. The magistrates admitted these statements and concluded that they had been made voluntarily without holding a trial within a trial. The High Court decided that the magistrate had been wrong in admitting these indications. Where there is a dispute as to whether a statement by an accused person was made freely and voluntarily a separate issue or trial within a trial must be held before such a statement can be admitted in evidence.
See also David HH-204-94.
However, any evidence, such as the murder weapon, discovered as a result of his indication or of information given by X is still admissible even if X did not make the indications freely and voluntarily: Nkomo 1989 (3) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).
If the accused testifies that the indications made by him to the police were made under duress, the court must hold a trial within a trial
In Ndlovu 1988 (2) ZLR 465 (S) the court commented upon the provision now contained in s 258(2) CPEA. This section renders admissible anything that was pointed out by the accused or any fact discovered in consequence of information given by the accused, even if the pointing out or information forms part of a confession or statement that is not admissible. The section does not, however, render admissible the statements or remarks made by the accused while he or she is pointing out the object or scene in question, nor does it cover statements he may make on the way to the scene. If the police wish to give evidence about what the accused said in these circumstances, he must be given the usual opportunity to say whether or not he made the statements freely and voluntarily and without undue influence. If he puts the matter in issue, and if the statements have not been confirmed, there must be a “trial within a trial”.
In Mazono & Anor 2000 (1) ZLR 347 (H) the accused stated at their trial that indications made by them to the police were made under duress. The magistrates admitted these statements and decided that they had been made voluntarily without holding a trial within a trial. The High Court decided that the magistrate had been wrong in admitting these statements. Where there is a dispute as to whether a statement by an accused person was made freely and voluntarily a separate issue or trial within a trial must be held before such a statement can be admitted in evidence.
See also S v David HH-204-94
Different rules apply depending upon whether or not the statement under challenge had previously been confirmed before a magistrate.
· Confirmed statement
Where a statement of X has been properly confirmed in terms of s 113 CPEA, the onus is on X under s 256(2) CPEA to prove on a balance of probabilities that the statement was not made by him or that it was not made freely and voluntarily and without undue influence. It is not necessary for the court to believe his story beyond any doubt; if the court comes to the conclusion despite certain reservations, that X is telling the truth, then he has discharged the onus: Ndlovu 1983 (4) SA 507 (ZS); Mthombeni S-80-90.
· Unconfirmed statement
Where the statement has not been confirmed in terms of s 113, the onus rests on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily and without undue influence. The reasons why the statement was not confirmed must obviously be probed by the court.
In Chatanga HH-19-90 X alleged that he was forced to make the unconfirmed warned and cautioned statement. Without dealing with that challenge by holding a trial within a trial, the policeman who recorded the statement was called and he produced the statement as if it had not been challenged. The review court said that the magistrate should have determined whether the statement was admissible by holding a trial within a trial.
A confirmed statement may be introduced in evidence on mere production. If the defence challenges such a statement the onus is on it to prove on a balance of probabilities that X did not make it or did not make it freely and voluntarily.
If the defence challenges an unconfirmed statement the statement may not be produced until its admissibility has been determined at a trial within a trial. The onus is on the State to prove that, despite X's protestations to the contrary, it was made by X and was made freely and voluntarily.
During the course of his trial X may admit to any fact relevant to the issue or, on instructions from his client, the defence lawyer may admit certain facts. The prosecutor may also make such admissions: s 314 CPEA. Any such admission "shall be sufficient evidence of that fact."
This provision only applies to admissions during the trial following upon a plea of not guilty or the entering of such a plea by the magistrate: Dhliwayo 1987 (1) ZLR 1 (H).
This procedure allows for admissions to be made, thereby dispensing with the need for the admitted facts to be proved. Where an undefended accused purports to make an admission of fact the court must ensure that the accused properly understands what he is admitting to and that he is competent to make the admission. The accused's legal representative may make admissions on his behalf.
Section 314(2) CPEA further provides that if the magistrate considers it desirable for the purpose of clarifying the facts in issue or obviating the production of evidence on facts which do not appear to be in dispute, he may, on the application of the prosecutor, ask X (or his lawyer) whether a fact relevant to the issue is admitted. Similarly, he may, on the application of X (or his lawyer) ask the prosecutor whether a particular relevant fact is admitted. Where it is proper to do so in the light of the client's instructions, the defence should be prepared to make such admissions about matters not in dispute. Non-cooperation and obstructionist tactics over such matters create a negative impression.
The prosecutor stands in a special relation to the court, and where there is a serious discrepancy between the statement of a State witness taken during investigations and what he says on oath at the trial, the court has the right to expect that the prosecutor will, of his own motion, direct attention to this fact and, unless there is special and cogent reason to the contrary, that he will make the statement available to the defence for cross-examination. On the other hand, a prosecutor is fully justified in refusing to show the statement to the defence where there is no foundation for the suggestion that the witness has materially altered his story.
Where there is such a serious discrepancy the prosecutor should complete the examination of witness and say to court that in the interests of justice he is obliged to draw attention of court to the fact that the statement given by the witness in court is radically different from that which he gave to the police: Steyn 1953 SR 76 at 79; Wise 1975 (2) RLR 194 (A). But it would not be necessary for the prosecutor to mention serious discrepancies if these favour the accused. See The Prosecutor’s Handbook pp 90-92.
The way in which exhibits are produced is set out in Chapter 18 of the Prosecutors Handbook. The comments in this handbook are equally applicable to production of exhibits by the defence. Where there are several defence exhibits the defence lawyer should draw up an itemised list of these exhibits in order to assist the court.
If the size or condition of an exhibit, such as a knife, is material, the prosecutor or the defence lawyer (whoever is producing the exhibit) will ask the magistrate to examine the exhibit and note on record the result of his observations.
All exhibits produced must be properly proved by evidence on oath from witness unless there is statutory authority for handing them in from the bar, that is, for the production of them by the prosecutor or by the defence. There are a number of documentary exhibits which are usually produced by handing them in from the bar. These are dealt with below.
All exhibits will be marked as they are produced in court.
Subject to certain exceptions dealt with below, documentary exhibits must be proved by evidence
on oath from witnesses. For more details on the topics dealt with under “Documentary Exhibits”
see The Prosecutor’s Handbook.
To prove photographs and plans, the person must be called who made the indications or observations upon the basis of which the photograph was taken or the plan made: s 279 CPEA. The plan or photograph may be handed in to the court without having to call the witness to prove it if the other side consent to its production without the witness being called: s 279(2)(b) CPEA.
Defence lawyers should obtain copies of plans and photographs before the trial and examine them carefully and ask his client to comment upon these. If there are no copies available, the defence lawyer should call on the prosecutor well in advance of the trial and request that he be allowed to study these documents.
Police witnesses may wish to refer to notes in their notebooks taken soon after the incident about which they are being asked to testify. The magistrate is entitled to examine these notes, as is the defence. The defence lawyer should always avail himself of his right to examine these notes as the notes may contain information which is favourable to his client's case.
There are statutory provisions allowing for the handing in of certain types of documentary exhibits by the State, without calling of the persons who made them to testify in court.
Section 278 CPEA allows the production of certain documents from the persons who compiled these documents provided that these are in affidavit form. These are:
ss 278, 279 and 280 CPEA.
In cases such as assault with intent to do grievous bodily harm, culpable homicide, attempted murder, infanticide and rape the State will often want to introduce medical evidence. The defence may also wish to introduce such evidence. If the State or the defence wishes to produce that evidence in affidavit form, certain formalities must be followed.
Section 278(11) CPEA provides that the defence must be given three days’ notice of the intended production of the affidavit. An affidavit is not admissible unless the defence has been given three days’ notice of its intended production or agrees to waive its right to be given notice. The defence may indicate in advance of the production of this evidence that it intends to apply for the doctor to be called to give oral evidence. The prosecutor may then decide to call the doctor so that he can give oral testimony.
After the affidavit has been produced, the defence may apply to the court for the medical practitioner to be called to give oral evidence where this is necessary to clarity or test the evidence. If no such application is made then the defence may be taken to have admitted to the truth and accuracy of the contents of the affidavit.
The court has a discretion in terms of s 278(12) CPEA to order that the doctor be summoned to give oral evidence at the trial. It may also send written questions to him to which he must reply.
It will be necessary to use the power to call the doctor to give oral testimony when the original affidavit is inadequate and thus the court will be unable to arrive at a just decision on the basis of the affidavit. If the information is very scanty or vital information is omitted or the information in the report seems to be contradictory, this power should be exercised. If the affidavit contains all the necessary information there will be no need to summon the doctor: Anock 1973 RLR 154; Sibanda A-10-72; Melrose 1984 (2) ZLR 217 (S).
As regards medical reports from doctors which the defence wishes to lead in evidence, the defence lawyer should try to get the prosecutor to agree to the evidence without having to call the doctor as doctors are often most reluctant to come to court and waste time. If the evidence is mere record of findings and it contains clear facts which are uncontentious, the agreement of the State to its production without having to call the doctor may well be forthcoming.
s 278(4) and (5) CPEA.
s 278(4) CPEA.
Under various statutes there is provision for documents to be certified so that they can be produced in court. These include documents certified under s 357(2) of the Companies Act [Chapter 24:03]], and under s 196(3) of the Insolvency Act [Chapter 6:04].
The procedure for the production of certified copies of official and public documents are set out in ss 275-277 CPEA.
Sections 285-289 CPEA provide an easy method for the State (or the defence, if such a course should be necessary) to prove entries in bankers books. This special procedure is necessary because it would be impossible for banks to function efficiently if their officials had to attend the various courts in the country and produce the bank's books to prove the entries therein.
Under this procedure a copy of an extract from bank’s books can be produced without having to call someone from the bank to prove that extract in court, provided an official from the bank (such as the bank's accountant) has sworn an affidavit to the effect that the the entries in question were made in the ordinary course of the business of the bank and that the copy is a true copy of the original entry.
The procedure applies in respect of commercial banks and other financial institutions registered under the Banking Act [Chapter 24:20], the Post Office Savings Bank, the Agricultural Finance Corporation and building societies. The same procedure applies in respect of foreign banks.
It can be used in relation to bankers’ books and documents such as ledgers, day-books, cash books, deposit slips and letters of transfer. Reid-Rowland in The Prosecutor’s Handbook at p 120 suggests that bank records kept in computerised form are admissible in terms of this procedure.
Under this procedure the opposing party is served with a copy of an extract from the bank's books. The papers must be served at least ten days in advance of the criminal proceedings, unless the opposing party agrees to waive this period of notice.
If the opposing party wishes to do so, it will be given the opportunity of comparing the copy with the original entries in the bank’s book. In order to do so, it must make an application to the court for an order that the opposing party be permitted to inspect the relevant bank books and take copies from the books which relate to the matter in question. Three days' notice must be given to the bank should the court grant such an application.
The certified copies of the extracts are prima facie evidence of the matters, transactions and accounts recorded in them. They are not conclusive proof and the court may decide not to accept the documents as evidence of those transactions where, for instance, there is doubt regarding the accuracy of the entries, or where a bank official has been charged with an offence which involves the alteration of the bank's books of account.
Sections 281-284 CPEA provide for the production of documents made during the course of business or trade.
In terms of s 282(2) CPEA, records relating to any transactions in connection with any trade, business or occupation are admissible on their mere production, provided that the facts contained in them would have been admissible as direct oral evidence. The transaction can be either inside or outside Zimbabwe. This provision provides a way for the State to overcome the difficulty of having to call the person who originally made these records.
Section 281(2) can be used by the State to produce documents such as documents made and kept by an employee or agent of the accused, as proof of the facts contained in that document, provided that those facts would have been admissible as direct oral evidence.
Section 284 deals with stamps, signatures and writing on negotiable instruments which were purportedly made by personnel in banks outside Zimbabwe. Until the contrary is proved, such marks on the instruments are deemed to have been made by such bank personnel.
Whenever the State introduces such documents in evidence and relies on particular portions of them, the defence lawyer should always ask to examine them. He should carefully scrutinise them as they may contain information beneficial to his client which has not been referred to by the State because this information does not advance the State case.
§ Documents executed outside Zimbabwe
For a document executed outside Zimbabwe to be admissible in evidence it must be properly authenticated. This is dealt with in Rule 3 of the High Court (Authentication of Documents) Rules of 1971 (RGN 995 of 1971). This lays down that any document executed outside Zimbabwe is deemed to be sufficiently authenticated for the purpose of production in any court if it is authenticated by a notary public, a mayor or a person holding judicial office or by certain specified Zimbabwean diplomatic or consular officials (in countries which have such officials).
In Adolfo 1991 (2) ZLR 325 (H) the court referred with approval to two South African judgments: In Ramgobin & Ors 1986 (4) SA 117 (N) the court stated that for tape recordings to be admissible it must be proved that they are the original records and that, on the evidence as a whole, there exists no reasonable possibility of ‘some interference’. In Baleka & Ors (1) 1986 (4) SA 192 (T) evidence of tape recordings can be admitted even where the recordings were imperfect, parts were inaudible and the whole was not decipherable. The court said that when a tape has been tampered with in the sense that certain words have been erased or certain portions inserted, the remainder of the tape is still original. The interference may have the result of diminishing or destroying its evidential value, but that does not mean that it is inadmissible.
In Tsvangirai & Ors HH-169-2004 the court said that the case of Ramgobin & Others 1986 (4) SA 117 correctly reflects the law on the admissibility of audio and video tape evidence. The court went on to find that in the present case the authenticity and accuracy of the video has been established although suggestions have been made that it may have been interfered with. The fact that a tape is inaudible in parts is no reason to require its exclusion, particularly in a case, such as the present, where the accused accepts the accuracy of the portions that are audible. In all the circumstances therefore this court reaches the conclusion that the video tape is admissible.
Judicial officers have the discretion to adjourn a case on the grounds that this is necessary or expedient. A case can be adjourned at any stage of the trial, whether or not evidence has been given. The period of adjournment must not exceed fourteen days unless X consents to a longer period. A case may be adjourned more than once for sufficient cause: s 166  CPEA.
If the defence requests an adjournment, it must obviously have sound grounds for doing so.
Defence counsel should note that because the objective of a criminal trial is to ensure that justice is achieved and because the liberty of X is often at stake, a judicial officer has the right to call witnesses not called by either party. The judicial officer may also recall and re-examine any witness already examined. He may do these things if the evidence appears to be essential for arriving at a just decision in the case: s 232 CPEA.
The cases say, however, that his right must be sparingly exercised. In defended cases it must not be exercised so as to interfere with the discretion of counsel in their choice of evidence they wish to be placed before the court: Zakeyu 1963 SR 434 (FS); Buitendag 1976 (1) RLR 345 (A); and Wright S-183-89.
Section 232 can also be used when the State by oversight has failed to prove a purely formal element. In Maringire 1988 (2) ZLR 318 (S) it was stated that if the prosecutor at the trial fails to call the evidence necessary to prove a mere technicality or purely formal element, the magistrate himself should call the evidence acting in terms of s 232 CPEA. This provision should be sparingly used in respect of a missing element in the State case which is more than purely technical and which is of a contentious nature.
Section 198(3) CPEA provides that the court may return a verdict of not guilty after the State has closed its case and before the defence case has commenced.
Under this provision X is entitled to be discharged if there is no evidence either -
(a) that he committed the offence charged or -
(b) that he committed any other offence of which it is competent to convict him on the basis of the crime charged.
X’s legal representative thus may apply for discharge at the close of the State case.
s 198 (3) CPEA provides that if at the closure of the State case the Court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon it shall return a verdict of not guilty. The section is couched in peremptory terms. In other words, once the Court has made a finding to the effect that there is no evidence that the accused committed the offence charged or any other offence arising from that charge it has no option but to find the accused not guilty and discharged. See S v Madzokere & Ors HH-37-14.
Even if there is no evidence that X has committed the crime charged the court must still consider what other crimes it is competent to convict X of on the basis of crime charged and whether, in the light of the evidence produced by the State, there is evidence that X committed any of these other crimes. If there is such evidence X must be put on his defence.
When considering whether to discharge X, the judicial officer must consider whether the State has made out a prima facie case against X. It is not necessary at this stage that the State should have proved guilt beyond all reasonable doubt.
The onus lies on the defence to satisfy the Court on a balance of probabilities that there is no evidence that each accused committed any of the offences charged or any other offence arising from the offences charged. S v Madzokere & Ors HH-37-14.
In Tsvangirai & Ors HH-119-03 the judge stated that the court shall return a verdict of not guilty if at the close of the State case the court considers that there is no evidence that the accused committed the offence charged (or any other offence with which he could be convicted on that charge). Thus, the court must discharge the accused at the close of the case for the prosecution where there is no evidence to prove an essential element of the offence; there is no evidence on which a reasonable court, acting carefully, might properly convict; the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. Instances of the last such cases will be rare; it would only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed.
X must obviously be discharged if the State has been unable to lead any evidence whatsoever of the commission of the crime charged. This would be a very rare situation. If the entire case against X has collapsed, one would expect the prosecutor to withdraw the charge.
Usually some evidence will have been advanced by the State. The test to be applied is whether a reasonable court might convict X on the basis of that evidence. In Hartlebury & Anor 1985 (1) ZLR 1 (H), the judge said that a court may order discharge where there is no evidence on which a reasonable court may convict. It may also order discharge where the evidence adduced by the prosecution is so discredited or manifestly unreliable that no reasonable court could safely act upon it or where there is no evidence to prove an essential element of the offence. These latter two grounds for discharge seem only to be particular illustrations of where the evidence adduced would not allow a reasonable court to convict. A reasonable court could not convict where the evidence led is totally unreliable or the State has failed to prove one of the essential elements of the crime charged.
If the defence lawyer applies for discharge in circumstances where it seems clear that his client committed the crime but there is some fatal flaw in the State case, it is tactful to adopt a somewhat self-deprecatory rather than a triumphant manner.
In Attorney-General v Bvuma 1987 (2) ZLR 96 (S) the Supreme Court decided that if the evidence led by the State is insufficient for a reasonable court to convict, the trial could should not refuse to discharge X at the close of the State case because it thinks that if X is put to his defence he could possibly provide a missing link in the State case. In other words, the onus is on the State to prove the guilt of X. If the State fails to produce evidence upon which a reasonable court could convict, the court should discharge X. It should not speculate on the possibility that the gaps in the State case might be plugged during the course of the defence case. Similarly, where X is jointly tried together with others, the possibility that the co-accused may give convincing evidence against X is not a proper basis for refusing to discharge when the State has failed to adduce evidence upon which a reasonable court could convict.
In Mpofu S-192-90 two persons were jointly charged with theft of money. The State failed to prove which of the two had stolen the money. The magistrate put the two on their defence as they "were throwing stones at each other" so as to enable the State to discover through cross-examination who committed the offence and who did not. At the end of the case the magistrate then convicted one of the two accused. The Supreme Court said this was a wrong approach. The magistrate should not have put either of the accused to their defence in the hope that he might be condemned by his co-accused.
In Kachipare 1998 (2) ZLR 271 (S) X and Y were jointly charged with the murder of a newly born child. The child was that of Y. Y pleaded guilty, but X denied the charge. An application was made at the end of the State case for X’s discharge. There was no evidence directly linking X with the offence. The trial judge refused the application, relying on the fact that there was evidence placing her close to the events and that the question of the truth or falsity of the evidence could not be determined without hearing X’s version. At the end of the trial, the court having heard the evidence of both accused, Y was convicted of infanticide and X was convicted of murder. On appeal, it was argued that putting X on her defence at the close of the State case was an improper exercise of the court’s discretion, in that it was designed to fill gaps in the State case. The Supreme Court decided that the wording of s 198 (3) CPEA made it clear that where, at the end of the State case, there is no evidence upon which a reasonable court might convict, the court has no discretion: it must discharge the accused. The court may not exercise its discretion against the accused if it has reason to suppose that the inadequate State evidence might be bolstered by defence evidence. The evidence in this case was purely circumstantial and was not evidence upon which a reasonable man might draw the inference suggested by the State. X should have been discharged at that stage of the trial. It went on to decide, however, that once an accused person is put on his defence, albeit wrongly, and is ultimately convicted, the refusal to discharge the accused is not in itself a sustainable ground for appeal against the ultimate conviction. At the stage the appeal is heard, the court cannot close its eyes to the evidence lead on behalf of X or a co-accused which, taken in conjunction with the State evidence, proves X’s guilt conclusively. The question which the appeal court must consider is whether, on the evidence and the findings of credibility (if any), unaffected by the irregularity, there is proof of guilt beyond a reasonable doubt. If the court does so consider — and the onus is on the State to satisfy it — there is no resultant miscarriage of justice and the irregularity will be ignored.
In A-G v Bennett 2011 (1) ZLR 396 (S) at the close of the State case, the State had not led the evidence it alleged in the State outline that it would lead. Some of the evidence not led was critical to the linking of the accused to the offence. This critical evidence for the State was either ruled inadmissible or the State witnesses told a different story from that alleged in the summary of the State case. In terms of s 198(3) CPEA, if at the end of the State case, the court considers that there is no evidence that the accused committed the offence charged, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty. “No evidence” means (a) there is no evidence to prove the essential elements of the offence; or (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (c) the evidence adduced on behalf of the State is was manifestly unreliable that no reasonable court could safetly act on
In Noormohamed HH-162-12 the court held s 198(3) CPEA provides that if, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty. There is a sound basis for ordering the discharge of the accused at the close of the case for the prosecution, where (a) there is no evidence to prove an essential element of the offence; or (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (c) the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. However, once an accused person is put on his defence, albeit wrongly, and is ultimately convicted, the refusal to discharge the accused is not in itself a sustainable ground for appeal against the ultimate conviction. When the appeal is heard, the court cannot close its eyes to the evidence lead on behalf of the accused or a co-accused which, taken in conjunction with the State evidence, proves the accused’s guilt conclusively. The question which the appeal court must consider is whether, on the evidence and the findings of credibility (if any), unaffected by the irregularity, there is proof of guilt beyond a reasonable doubt. If the court does so consider – and the onus is on the State to satisfy it – there is no resultant miscarriage of justice and the irregularity will be ignored.
In Mpofu HB-81-12 the court observed that the trial court has no discretion but to acquit at the end of the State case if there is was no evidence upon which a reasonable court would convict the accused. The court is not entitled to place him on his defence in the face of inadequate evidence in the hope that the accused would incriminate himself during his defence. It is the duty of the State to place evidence of probative value before the court in order for the court to hold that the State has established a prima facie case against the accused, meaning proof of the commission of the offence which implicates the accused to such a degree that as to call for an answer. Less evidence will suffice to establish a prima facie case where the matter is peculiarly within the knowledge of the opposite party than would under other circumstances be required. The State need not, however, prove the commission of a crime at this stage, but must have adduced evidence which will justify the transfer of the onus to the accused on the basis of his special knowledge of the incident. Where this knowledge is shown, it then becomes the accused’s duty to explain his conduct and he can only do so in his evidence-in-chief which should be tested by cross-examination by the State.
For that application to succeed, the onus lies squarely on the defence to satisfy the
Court on a balance of probabilities that there is no evidence that each accused committed any
of the offences charged or any other offence arising from the offences charged.
If the court rejects the submission that no case to answer in a situation where the defence lawyer strongly feels that there were strong grounds for discharging him at the close of the State case, a decision will then have to be made as to how to proceed thereafter. James Morton Handling Criminal Cases A guide to preparation and defence (1986 Waterlow) says it will be extremely brave decision for the defence lawyer to simply close his case without calling his client or any defence witnesses. The State case would have to be very thin indeed to justify such action. If the defence lawyer intends to close the defence case without leading any evidence, he should consult with his client in order to advise him of the course of action he proposes to take and to obtain his authorisation to adopt this approach.
It must be noted that the accused has no right of appeal against refusal to discharge at the close of the State’s case until after conviction: Hunzvi 2000 (1) ZLR 540 (S)
On a more general note legal practitioners should avoid what appears to be an increasing tendency to apply for discharge at the close of the State case as a matter of routine, even when it quite apparent that the State has made out a prima facie case. This indiscriminate and inappropriate approach has a deleterious effect and may tend induce a sceptical attitude on the part of judicial officers even in relation to genuine and well-based applications for discharge.
The defence can apply for discharge of X at the close of the State case if no prima facie case has been made out and no reasonable court could convict X of the crime charged on the basis of the evidence led by the State.
However, the court will not discharge X if the evidence led could lead to the conviction of X of some other charge which is a competent verdict for the crime charged.
In P-G v Mtetwa & Anor HH-82-16 the Prosecutor-General brought an application for leave to appeal against the magistrate’s decision to discharge the accused. The application was brought in terms of s 61 of the Magistrates Court Act. The court held that an appeal against the decision of a magistrate to discharge at the end of the State case must be brought under s 198(4) CPEA. The Prosecutor-General may appeal under s 61 of the Magistrates Court Act against the decision of a magistrates court on a point of law or because it acquitted on a view of the facts which could not reasonably be entertained. The latter procedure applies a situation where all the proceedings are terminated or a full trial has been completed, whereas the former applies during the course of the trial at the close of the State case. While no time limit is prescribed in s 198(4), such an application must be made in a reasonable time, in view of the need for finality in litigation and to ensure that the interests of justice are safeguarded. The right to a fair hearing within a reasonable time is enshrined in s 69 of the Constitution. What constitutes a reasonable time is a matter of fact and depends on the circumstances of the case. In the circumstances of this case, the delay in the present case was inordinate and unexplained.
The defence is entitled to call witnesses to testify for the defence. In terms of s 229 CPEA if the defence wishes to compel the attendance of a witness it may “take out of the office prescribed by the rules of court the process of the court for that purpose”. If X wishes to have any witnesses subpoenaed and he satisfies the prescribed officer of the court that he cannot afford to pay the prescribed costs and fees and that such witnesses are necessary and material for his defence, the prescribed officer will subpoena the witnesses.
Defence witnesses who give testimony may be cross-examined by the prosecutor.
X must be allowed to call his witnesses. If his witnesses are not available when he wishes to call them, the proceedings must be adjourned so that he can be given a reasonable opportunity to contact them and ensure that they are available at the resumed hearing.
It was pointed out in the case of Nyathi HB-90-03 that not every refusal of an adjournment or postponement of a trial to give the defence time to call a witness who is not available at court constitutes a gross irregularity. The question is whether in refusing the adjournment all the material facts were taken into consideration. In this case, the accused abandoned his intention to call his witness after two postponements failed to secure the attendance of the witness.
Defence counsel needs to decide whether X should give testimony in his own defence. Sometimes X's legal representative will decide that it would be inadvisable for X to testify and will advise him accordingly. For example, the State case may be weak and the lawyer may decide that X will make a poor witness and may only end up strengthening the State's case if he is put on the witness stand. As the prosecutor and the judicial officer are entitled to question X even if he elects not to give evidence, it is generally better if X is called to give evidence. If he declines to give evidence, the court’s reaction may be to believe that he has something to hide.
If X gives evidence in his defence the prosecutor can cross-examine him and he may also be questioned by the magistrate.
Defence counsel must bear in mind that even if the defence has decided that X will not give evidence, under s 198(9) CPEA the prosecutor and the court may still put questions to him. If he refuses to answer the questions put to him, adverse inferences may be drawn by the court from this refusal.
Where the acts alleged by the State are not denied, it is still possible for X to plead not guilty. The defences raised in these circumstances usually fall into two main categories, namely - (1) defences which affect the mental element of the crime and (2) defences which affect the lawfulness aspect.
Falling into the first category are defences such as mistake of fact and intoxication. With such defences the contention will be that X lacked the mens rea for the crime because he was mistaken about the facts at the time of the crime or was so drunk that he did not realise what he was doing. Into the second category fall defences such as lawful authority to do the act and lawful justification or excuse in the form of such defences as self-defence or compulsion. For full details of these defences see section 3 of A Guide to the Zimbabwean Criminal Law 2nd Ed. by G Feltoe.
If X is legally represented his lawyer may specifically plead a particular defence on his behalf. With unrepresented accused, X may not explicitly raise a defence but in his evidence he may say things which suggest that a certain defence might apply. He may, for instance, testify that he was extremely drunk at the time he committed the crime. Here the magistrate must carefully investigate whether in fact the defence does apply.
Once there is sufficient evidence to put a defence in issue, the rule is that the State must disprove the defence. The only exceptions to this rule are:
- the defence of insanity, where the onus is on the defence to prove on a balance of probabilities that X was insane at the time of the crime;
- where a statutory provision provides for defence to an offence but the onus is on X to establish the existence of the defence.
In the case of Mapfumo & Ors 1983 (1) ZLR 250 (S), the court said that, subject to the exceptions set out above, there is no onus on X to establish his defence. Once there is some evidence suggesting a defence the court must consider this evidence. That evidence may have been adduced by the defence or it may emerge from what has been said by the defence or prosecution witnesses.
Sometimes the examination or re-examination of a defence witness may reveal a line of defence that could not reasonably have been foreseen by the prosecutor and which was not indicated during the questions put in cross-examination of State witnesses. In such cases, the prosecutor may ask the leave of the court to call evidence in rebuttal of the defence. The court has a discretion on whether to grant leave. It should normally not grant leave if by the exercise of due diligence the prosecutor could have called the evidence before closing his case. There must have been something in the nature of a surprise or an unexpected new issue introduced by the defence.
This situation is most likely to arise with an accused who is not legally represented. Such an accused may not have indicated this point in his defence outline and he may not have realised that it was necessary to put this line of defence to the State witnesses.
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 magistrate trying the case is aware of the essential ingredients of the crime with which the accused has been charged.
In terms of s 29 of 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. 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.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 to the possibility that the accused 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 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. 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.
If the accused has not previously been psychiatrically examined, the court may order such an examination. 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.
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.
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.
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.
Reopening of State case and evidence from State in rebuttal of a defence
It is not just and proper for the State to be allowed to re-open its case to lead evidence that was available to it from the beginning of the proceedings in order to rebut a defence which the State knew of at the beginning of the proceedings. To allow such evidence to be led after the close of the defence case was unjust to the defendant, as it gave the State an opportunity to rebuild its case: Munyaradzi S-74-89.
Sometimes the evidence of a defence witness may reveal a line of defence that could not have reasonably have been foreseen by the prosecutor and which was not indicated during the questions put during cross-examination of State witnesses. In such cases the prosecutor may ask the leave of the court to call evidence in rebuttal of the defence. The court has the discretion as to whether to grant leave. It should normally not grant leave if by the exercise of due diligence the prosecutor could have called the evidence before closing his case. There must have been something in the nature of a surprise or an unexpected new issue introduced by the defence.
This sort of situation should not normally arise in a case where X is legally represented as the defence outline would usually have alluded to the defence and the defence lawyer would have put the existence of the defence to the State witnesses. Thus the prosecutor can hardly claim that there was a surprise element late on in the trial. On rare occasions, however, a defence which did not emerge from his client's instructions and had not been referred to when a witness was interviewed may suddenly be alluded to by the witness when he is giving evidence, taking both the defence lawyer and the prosecutor by surprise.
Where there are discrepancies between the contents of the indictment, the summary of the State case and the preamble to X’s warned and cautioned statement on the one hand and the evidence given by State witnesses on the other, the court will consider whether the discrepancies are material and essential and whether X has been prejudiced in the conduct of his defence by the discrepancies. Although the summary of the State case should be an accurate summary of what is contained in the Police docket and not a figment of the imagination of the policeman who prepared the summary, it should be treated on the same basis as an Outline of Defence which has been prepared on the instructions of X. A State witness has no control over what the policeman compiling the summary decides to include in the Summary as being relevant. Therefore the credibility of a State witness will not be destroyed simply because there are apparent conflicts between his testimony and the summary on matters which are not essential to establish the offence alleged. If, however, there are discrepancies between the summary and the evidence of a State witness on matters essential to establish the offence charged, then unless a satisfactory explanation is proffered, it cannot be said that the prosecution has proved its case beyond reasonable doubt: Dube S-225-92 at p 5.
However, in Chigova S-177-92 at p 12 it was stated that:
... a précis of a case by the State is not to be given equal weight with the Outline of Defence on behalf of the accused. The reason for this is simple. The complainant has no control over what a policeman may find relevant enough to include in a précis. The précis is not her word or deed. She is not to be taken as having made categorical statements on matters which, though relevant, are not essential to establish the offence alleged. The complainant’s credibility is not to be assessed on apparent conflicts between her viva voce testimony and a summary of the case prepared by someone else.
In terms of s 200 CPEA both the prosecutor and the defence have the right to address the court at the conclusion of the defence.
Where the parties wish to exercise this right to address, the prosecutor must address first and then X's lawyer will address. If the defence lawyer has raised any point of law during his address, the prosecutor then has the right to reply to this point. In other words the defence has the last word on the facts and prosecutor has the last word on the law.
The defence address should be clear, concise and well ordered. A long, rambling, disorganised and confused address will not assist the defence case. The aim should be to give a lucid review of the case, stressing the strong points of the defence and the weak points in the State case. The defence lawyer must have a clear appreciation of main points advanced by the State against his client so that he can set out to defeat or counteract these points in argument. He must also have a proper understanding of what are the essential elements of the crime charged against his client, so that if the State has failed to prove any of these elements, he can point this out to the court in his concluding address.
All factors which cast doubt upon the reliability of the testimony of the witnesses called by the State must be highlighted. Matters such as -
(a) the poor demeanour of State witnesses; and
(b) contradictions in the testimony of State witnesses; and
(c) contradictions between the testimony of the various State witnesses;
must be commented upon. If the State case rests upon identification evidence, any factors tending to make that identification suspect must be stressed. If the State case rests upon the uncorroborated evidence of an accomplice or a witness whose testimony requires special scrutiny such as a child witness or on the evidence of a single witness, the defence must draw the court's attention to the dangers of placing reliance upon such testimony, citing relevant case law where appropriate. (See Section 6 Rules of Evidence for the case law in this regard.)
In the final analysis, the defence will be seeking to persuade the court that the State has failed to prove its case beyond a reasonable doubt. Remember that the burden rests upon the State to prove its case beyond reasonable doubt. If reasonable doubt remains at the end of the case, X is entitled to be acquitted. (However, with some statutory offences, the onus is shifted to X to prove certain facets on a balance of probabilities in order to escape liability.)
Some of the more typical defence arguments are these:
- The State has failed to prove that X was involved in the crime at all because, for instance, it has not disproved his alibi or the identification evidence is completely unreliable.
- The State has failed to prove one or more of the essential elements of the crime charged. With crimes which require proof of subjective intention, the defence will often argue that the State has failed to prove that X had the necessary intention because, for example, he was very drunk and/ or was seriously provoked. If the crime is one requiring proof of negligence, such as culpable homicide, the defence may argue that X was not negligent because, in the particular circumstances of the case, the death was not reasonably foreseeable or that the accident was unforeseeable.
- That although X intentionally did an act which resulted in harm, one of the recognised defences applies, such as self-defence or legal authority to act in that way.
It may be necessary to cite relevant case law in order to bolster these arguments.
If there are any legal points which need to be argued, reference to relevant legal authorities should be made.
The stronger the defence case, the more confidently it can be advanced. However, even if the State case is strong and the defence case is weak, the defence lawyer should try not adopt an approach which reveals to the court that he is simply going through the motions of addressing and that he has no faith whatsoever in the argument he is advancing. James Morton Handling of Criminal Cases has this to say:
Try not to ramble even in extremis. Try to end your speech on an uplifting note, rather than shuffle your papers and say "I don't think there is anything more I can help you with." Try above all to be positive. Believe in what you say. You are, after all, legitimately selling a point of view. If it looks as though you are unconvinced and uncaring, it is almost an invitation to convict.
Morton also cautions against the magistrate who nods and smiles during the defence lawyer's address. He says that you may think that he is nodding in agreement. This may not be the case.
The court will normally require the parties to address immediately after the defence case is closed. However, in very complicated cases, where the evidence is contradictory or where there are complex points of law, the parties may request an adjournment to prepare their addresses properly. Such requests for adjournment should normally be granted.
Where X applies to withdraw a plea of guilty before verdict, the presumption of innocence still applies. X must give an explanation as to why he initially pleaded guilty and why he now wishes to change his plea. Once he gives an explanation, however, it will suffice; there is no onus on him to convince the court of the veracity of his explanation. If he fails altogether to give an explanation for the withdrawal of the original plea the court is entitled to hold him to his plea: Haruperi 1984 (1) ZLR 258 (H).
Even though X's explanation may be improbable the court is not entitled to refuse the application unless it is satisfied that explanation is not only improbable but false beyond reasonable doubt.
If the applications is one to which s 272 CPEA applies (procedure where there is doubt in relation to plea of guilty), the question of onus cannot arise: Nyathi & Anor 1988 (1) ZLR 221 (H).
If X alleges that his plea of guilty was the result of improper conduct by those in authority over him, the court must stop the proceedings and investigate this allegation.
What should a defence lawyer do if his client wishes to change his plea after conviction. The answer was provided in the case of Jackson HH-201-02 X, together with a colleague, stole a car in Chinhoyi. While driving it away, the accused lost control. His companion was killed; the vehicle was badly damaged. At his trial in a regional magistrates court, X pleaded guilty and was convicted. The matter was referred to the High Court for sentence. Before the hearing, X’s legal representative indicated that the accused wished to change his plea to one of not guilty. The reason given was threats by the police. The question was whether the High Court could remit the matter to the lower court for the accused to change his plea. The court held the application to change the plea should be directed to the trial court. Although there is no onus on the accused – all he must do is offer a reasonable explanation for having pleaded guilty – less is required of him when he applies to the High Court for remittal to change his plea. All he must show is that he has an explanation which prima facie shows that he has a reasonable explanation for a change of plea to give to the trial court. Sections 227 and 271(2)(b) CPE apply in this regard.
This is true enough, but not something that defence lawyers need to know, surely?