CASE NO. CRB 64/22
ELVIN DONGO SAUNGWEME
DELLION DAVID BALANI
IN THE HIGH COURT OF ZIMBABWE
HARARE, 30 September, 3 & 5 October 2022
ASSESSORS: 1. Mr Mhandu
2. Mr Shenje
Application for separation of trials
T Mukuze, for the State
T Mpofu, for the 1st accused
B Marwa, for the 2nd and 3rd accused
- This is an application for a separation of trials brought in terms of section 190 of the Criminal Procedure and Evidence [Chapter 7:09] (the Criminal Procedure & Evidence Act). Accused 1, (applicant) seeks that his trial be separated from the trial of accused 2 and 3, his co-accused. The co-accused are not opposing the application, it is only opposed by the State.
- The applicant together with his co-accused have been indicted in this court on a charge of murder as defined in s 47 of the Criminal law (Codification and Reform Act [Chapter 9:23]. It being alleged that on the 12th of March 2020 the three accused or one or more of them unlawfully caused the death of the now deceased by slitting his throat using a bread knife.
- This is the second application for separation of trials in this matter. The first application was refused. See: The State v Mawadze & Ors HH 676-22. After pleading not guilty to the indictment the applicant renewed his application for a separation of trials. Mr Makuze, counsel for the State submitted that this application should not have been made because the same application was refused. Per contra Mr Mpofu, counsel for the applicant submitted that this court can entertain this application because the first was not dismissed on the merits.
- A refusal to grant a separation of trials is interlocutory. See: S v Libaya 1965 (4) SA 249 (O). This means that in the course of the trial the matter of separation can be raised again for fresh consideration by the trial court, should there be new facts. The first application was refused because at that stage the applicant and his co-accused had not pleaded to the indictment and therefore there were no trials to separate. This application was made after the applicant and his co-accused had pleaded not guilty to the indictment. The pleading to the indictment introduced a new fact clothing this court with jurisdiction to entertain this application. It is for these reasons court this curt entertained this second application for separation of trials.
- The applicant and his co-accused pleaded not guilty to the indictment. The State tendered an outline of the State case, which is before court and marked Annexure A. The applicant tendered his defence outline and summary of evidence and such are marked Annexure B and C respectively. The co-accused tendered their defence outline and summary of evidence and such are marked Annexure D and E respectively. State counsel sought and obtained an admission from the applicant and his co-accused to introduce into evidence the post mortem report in terms of s 314 of the Criminal Procedure & Evidence Act [Chapter 9:07] (CP & E Act). The report is before court as Exhibit 1.
- Counsel for the State submitted that there has been a concerted effort to delay this trial. Although no much progress has been made since the matter started on the 26 September 2022, this court will not at this stage say that the applicant is bent on delaying the finalisation of this trial. The court takes it that the applicant is merely asserting his right to a fair trial, his constitutional entitlement.
The application of the legal principles to the facts
- Section 190 of the Criminal Procedure and Evidence Act [Chapter 7:09] bestows on the court before whom two or more persons are charged in the same indictment, a discretion, at any time during the course of the trial, on the application of either the prosecutor or any of the accused persons to separate the trials. The section reads as follows:
“When two or more persons are charged in the same indictment, summons or charge, whether with the same offence or with different offences, the court may at any time during the trial on the application of the prosecutor or of any of the accused, direct that the trial of the accused or any of them shall be held separately from the trial of the other or others of them, and may abstain from giving a judgment as to any of such accused.”
- It is trite that in support of an application of this nature, the applicant is required to prove on a balance of probabilities that he would suffer prejudice if a joint trial takes place.
- The decision as to whether to grant a separation of trials is a discretionary matter. See: S v Ismail S.C. 52/94. The discretion must be exercised in a judicial manner in the interests of justice, taking into account and considering all the relevant facts. It must not be exercised arbitrarily or capriciously. The main test in deciding whether to grant an application for separation is whether the applicant will suffer prejudice if a joint trial takes place. See: R v Nzuza & Another 1952 (4) SA 376 (A); R v McMillan & Another 1958 (3) SA 800 (E). The prejudice which the applicant will suffer if separation is refused is balanced against the prejudice to the co-accused and the State if separation is allowed. See: Shuma & Anor 1994 (4) SA 583 (E).
- As a rule, persons who are charged jointly should be tried jointly. A bare possibility of prejudice is not sufficient to justify separation. It must be shown that prejudice is likely. See: R v Dekker & others 1931 TPD 462. An accused cannot complain of prejudice when the avenue of escape has been lawfully stopped through a joint trial. In the absence of likely prejudice the court will not grant a separation unless the State consents. R v Kunstler & others 1931 WLD 244. If a separation of trials may hinder the State in the presentation of its case so as to lead to a miscarriage of justice by the acquittal of guilty persons the court may refuse a separation of trials. See: R v Krizinger & another 1952 (4) SA 651 (W). Statements from the bar concerning the likelihood of prejudice may be sufficient to justify separation. See: R v De Wet 1935 OPD 199.
- The law is settled with regards to applications of this nature. One of the general principles is that a multiplicity of proceedings should as far as possible be avoided, as a duplication of trials waste resources and time to the detriment of the interest of society. It is generally accepted to be in the interest of the administration of justice that persons charged together with the same count, should be tried together See: See R v Bagas 1952 (1) SA 437 (A) at 441F. Accused persons should thus be tried together as far as it is reasonably possible, especially when charged with common purpose so that the court can have all the evidence before it. This will place the court in a better position as to determine guilt or innocence of each accused person.
- The question in the present instance is whether it will be in the interest of the administration of justice to order a separation of trials, factoring into the equation whether a joint trial will prejudice the applicant, if so, balancing this with the possible prejudice to the State.
- The applicant anchored this application on five grounds. I now turn to deal with each ground in turn.
Applicant and co-accused attack and incriminate each other
- 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 will be a matter which the court should take into account in determining whether to order separate trials or not. This principle was underscored in Ismail v The State S.C. 52/94 where the court held thus:
“There is no rule of law that separate trials should be ordered when an essential part of one accused person’s defence amounts to an attack on a co-accused, but the matter is one which the judge should take into account in the determination of an application whether to order separate trials or not.”
- Mr Mpofu submitted that the applicant and his co-accused attack each other in their respective defences. In his defence outline and summary of evidence the applicant avers that the murder of the deceased took place in his absence and was the act of his co-accused. On the other hand in their defence outline and summary of evidence the co-accused aver that they did not cause the death of the deceased but he was killed by the applicant who slit his throat with a knife. It is clear that the defence of the co-accused is an attack against the applicant’s defence. In turn, the defence of the applicant is a direct attack against the defence of his co-accused. It is clear without doubt that in this matter the accused persons attack and incriminate each other. The co-accused are saying “we are not the offenders, the applicant is the offender.” In turn, the applicant says “I am not the offender the co-accused are the offenders.” In view of this it was argued that the applicant will be prejudiced in his defence unless a separation of trials was ordered.
- The issue of the applicant and the co-accused attacking and incriminating each other is an important consideration, but is not decisive. The court has to consider whether a separation of trials may so hinder the State in the presentation of its case so as to lead to a miscarriage of justice by the acquittal of guilty persons, if so the court may refuse a separation of trials. The general principle is that where co-accused blame each other it will often be in the interests of justice to have a joint trial, which enables the court to hear all the evidence and to be in a good position to determine the matter. Moreso where the State as in this instance, relies on the doctrine of common purpose to prove its case against the accused persons. It was pointed out in R v Solomon 1934 CPD 1994 that in the event of separate trials it becomes very easy for each accused to put the blame on the absent accused. These are general principles, however each case must be determined on its facts, factoring into account where possible these general principles.
- The following factors are relevant in the determination of this case. The co-accused will suffer no prejudice by a separation of trials, if there was any prejudice they would have made such submissions in support thereof. They did not. Again this court has not been told how a separation of trials may lead to a miscarriage of justice by leading to an acquittal of guilty persons. It is not enough to merely say a separation of trials will lead to a miscarriage of justice, it must be shown how such a miscarriage will occur. It is the duty of the State to adduce evidence to prove the guilty of each accused person. On the facts before court at this stage there will be no basis to hold that a separation of trials will lead to a miscarriage of justice by the acquittal of guilty persons.
- In determining whether an application for the separation of trials should be granted, the primary concern is whether the applicant will be prejudiced by a joint trial. Furthermore, the prejudice which the applicant will suffer if separation is refused is weighed against the prejudice to the other party and the State if separation is allowed. In this case it is clear that the essential and material part of his co-accused’s defence amounts to a direct attack on the applicant’s defence.
- The co-accused will not suffer any prejudice and there is no factual basis to hold that the State will suffer any prejudice by separation of trials. As it was held in Ismail v The State (supra) that where an essential part of one accused person’s defence amounts to an attack on a co-accused such is an issue to be taken into account in the determination of an application whether to order separate trials or not. This is a factor that has to be taken into account in this application, to be weighed with other relevant factors. On the facts of this case the applicant will likely suffer prejudice if a separation of trials is refused.
Applicant intends to call a co-accused as his defence witness
- An accused has a right to adduce evidence and the right to call witnesses is one of the core principles of a fair trial. It has been held that fewer rights are more fundamental than that of an accused to present witnesses in his own defence. This right is essential attribute of the adversary system itself. See: Taylor v Illinois 484 US 400 408 (1988):
- In S v Gwala 1989 4 SA 937 (N) 938G the court held that an “accused had an absolute right to call a witness”, a right which was not dependent on permission from the court. At common law however a court may refuse to allow an accused to call a witness where the witness cannot possibly give relevant evidence. However, the court has to be “exceptionally careful” in arriving at such a conclusion. See: S v Nkambule 1995 2 SACR 444 (T) 448.
- The applicant avers that he intends to call the second accused as his defence witness. The second accused did not challenge this contention. It is accepted for the purposes of this application that the applicant wishes to call the second accused to give evidence in his defence. In the applicant’s summary of evidence the evidence to be adduced from the second accused is briefly summarised. It is clear that the evidence proposed to be adduced from the second accused is relevant evidence to the issues in this trial. It was argued that a joint trial is prejudicial to the applicant because it deprives him an opportunity to call the second accused as his witness. Whether the applicant succeeds in his endeavour to call the evidence of the second accused may not be determined at this stage of the proceedings. What can be said at this stage is that the second accused has certain rights which must be balanced and weighed against the right of the applicant to adduce and call evidence. A separation of trials may effect the realisation of both rights. See: S v Shuma 1994 4 SA 583 (E).
- This case is distinguishable from S v Shuma 1994 (4) SA 583 (E) where an accused sought a separation of trials so that he could call his co-accused as his defence witness. The question was whether an accused’s constitutional right to adduce evidence overrides the prejudice a new trial may cause the state. The court sought to balance the interests at stake by determining whether the accused would suffer prejudice if he could not call his co-accused. In the light of the “limited evidence” the co-accused could provide, the court refused the application because there was no real danger of prejudice to the accused. The court held further that should there be any possibility of prejudice, it would be outweighed by the prejudice to the State. The court concluded that the refusal to order a separation of trials was a reasonable and justifiable limitation of the right to call a witness.
- In this case the kind of evidence that the applicant proposes to adduce from the second accused cannot be said to be “limited evidence” in any way. It appears to go to the root of this trial. In such an application prejudice to accused is the primary consideration, subject to recognised limitations. In the circumstances of this case a refusal to order a separation of trials will limit and likely prejudice the applicant in his defence.
Evidence admissible against the co-accused and not admissible against the applicant
- The position at law is that where a joint trial may give rise to evidence which is admissible against one accused, and not against a co-accused, this may justify a separation if such will result in prejudice. See: R v Ndhlangisa & Another 1946 AD 1101. Put differently, the fact that evidence may be admissible against one accused but inadmissible against another (e.g. a confession or pointing out) is an important consideration, but not decisive in an application for separation of trials.
- Mr Mpofu submitted that the evidence admissible against the co-accused, and which is central to the State case is inadmissible against the applicant. Counsel submitted further that the co-accused made confessions in their warned and cautioned statements. This court had not seen the contents of the warned and cautioned statements. Counsel also referred to the summary of the evidence of Paul Chivhuro and Zibusiso Ngwenya as it appears in the summary of the State case (Annexure A), and submitted that the second accused made a pointing out which led to the recovery of the body of the deceased, while the third accused led to the recovery of the murder weapon. Counsel contended that these pointings out amount to confessions which are not admissible against the applicant. It was argued further that with such evidence admissible against the co-accused only, a joint trial will cause prejudice to the applicant and that such prejudice justifies a separation of trials.
- At this stage of the trial this court cannot say the warned and cautioned statements and the pointing out amount to confessions. A confession is a particular species of an extra curial statement. The courts have given the term confession a very narrow construction so as to restrict the effect of the strict statutory requirements governing its admissibility. In R v Becker 1929 AD at 171 De Villiers ACJ concluded that a confession could only mean “an unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a court of law.” It is therefore an extra curial admission of all the elements of the offence charged. See: Du Toit et al – Commentary on the Criminal Procedure Act 24-51. Section 259 of the Criminal Procedure & Evidence Act determines that “no confession made by any person shall be admissible as evidence against another person”. Even indirect usage of a confession against someone other than the declarant is prohibited See: R v Baartman 1960 3 SA 535 (A); and S v Makeba 2003 2 SACR 128 (SCA).
- At this stage of the trial this court cannot say that the warned and cautioned statements and the pointings out allegedly made by the co-accused amounts to confessions. This court can only say that they are extra curial statements, which under the common law are only admissible against the makers and therefore not the applicant - except in limited circumstances which are not relevant in this case. See: S v Sibanda 1992 ZLR 438 (S). Even the usage of extra curial statements against someone other than the maker is prohibited by law.
- This court shall therefore solely for the purposes of this application accept (because the co-accused did not dispute that such evidence is admissible against them and not against the applicant) without finding that the extra curial statements and the pointing are admissible against the co-accused and are not admissible against the applicant. It is so because such a finding on admissibility can only be made at the time the issue of admissibility is determined. The evidence of pointings out, as it appears in the summary of the State case (Annexure A) contains material likely prejudicial to the applicant though it may not be admissible against him. The envisaged likely prejudice justifies that the trial of the applicant to be separated from that of his co-accused.
- The procedural advantages of a joint trial are many. Time and costs are saved. A single prosecution of several accused in a joint trial ensures that prosecution witnesses only testify once and that only one court is occupied for the purpose of trying all the accused. A joint trial may result in procedural convenience for the prosecution. But weighing up the procedural convenience against the applicant’s right to a fair trial, on the facts of this case, the procedural convenience must give way to the right to a fair trial.
- Mr Mukuze submitted that the neither the applicant nor his co-accused pleaded guilty to the indictment, therefore there is no reason warranting a separation of trials. It is correct that neither of the accused pleaded guilty to the indictment. Even if any one of them had admitted to have committed the offence, this being a murder indictement the court was still going to enter a plea of not guilty and ask the State to prove its case in terms of the law. The issue in this application is not whether one of them pleaded guilty or not, but whether in their defences they attack and incriminate each other and the effect thereof.
- State counsel argued further that the right of a fair trial is not a monopoly of an accused. Section 69 (1) of the Constitution of Zimbabwe (Amendment No. 20) Act means that the entire process of bringing an accused person to trial and the trial itself must be tested against the standard of a fair trial. At the heart of the right to a fair criminal trial and what infuses its purpose is that justice must be done and must also be seen to be done. This does not mean sympathy for the accused and those who commit crimes, it is merely an answer to the constitutional demand for a fair trial. Trial fairness is not confined to the position of the accused, but extends to society as a whole, precisely because society has a real interest in the outcome of a criminal trial. A trial that is unfair is not only unconstitutional, but also not in the public interest. However, the actual ambit and the contours of fairness must be determined in the light of the particular facts of each case.
- State counsel argued further that the prosecution is dominus litis and should in principle not be hampered in the manner in wish it wishes to proceed with the prosecution. This is a valid consideration which support a joint trial, but must be balanced and weighed with the applicant’s right to a fair trial, which right is constitutionally guaranteed.
- For completeness the point must be made that the applicant had taken two further points in support of this application, the first is that by being the first accused his cross examination of state witnesses will be undermined by the co-accused and the prosecution in re-examination. The second is that the co-accused will manipulate their versions to counter and meet his, as they allegedly did when preparing their summary of evidence. Because of the findings this court has made in respect of the other grounds taken by the applicant, no useful purpose will be served by engaging with these two grounds.
- Finally in determining whether an application for the separation of trials should be granted, the primary concern is whether the applicant will be likely prejudiced by a joint trial. Furthermore, the prejudice which the applicant will suffer if separation is refused is balanced and weighed against the prejudice to the other party and the State if separation is allowed. The above factors i.e. that the applicant and his co-accused attack and incriminate each other in their defences, that the applicant intends to call the second accused as his defence witness, that the evidence possible admissible against the co-accused may not be admissible against the applicant, viewed in the context of the applicant’s right to a fair trial, individually and cumulatively show that the applicant will likely be prejudiced by a joint trial.
- The applicant has discharged the onus of showing that a joint trial will prejudice him in the conduct of his defence. This is a text book case of where a separation of trials must be ordered. It is for these reasons that this application must succeed.
In the result, IT IS ORDERED THAT:
- The application for separation of trial be and is hereby granted.
- The trial of the accused 1 (applicant) be and is hereby separated from the trial of the second and third accused persons.
It is so ordered.
National Prosecuting Authority, State’s legal practitioners
Dube, Manikai & Hwacha, first accused’s legal practitioners
Zuze Law Chambers, second and third accused’s legal practitioners