The ManicaPost
Trust Maanda
Post Correspondent
IN criminal proceedings, the State, through the prosecutor, bears the onus to prove the accused guilty beyond any reasonable doubt.
To do so, the State calls its witnesses to testify against the accused.
Once all the State witnesses have testified and the State has closed its case against the accused, the accused is called upon to give evidence.
However, the accused can only give evidence in his or her defence if at the close of the State case, there is evidence that the accused committed the offence charged in the State papers on which he or she might be convicted.
At that stage, the issue is not whether the State has proved its case beyond any reasonable doubt as to justify a conviction.
It is about whether there is a prima facie case, which means a case at first glance before evidence is given in rebuttal.
The lawmaker has made provision for what should happen in the event that the State would have closed its case against the accused.
In terms of Section 198(3) of the Criminal Procedure and Evidence Act, [Chapter 9:07], 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 in the indictment, summons or charge or any other offence of which he might be convicted thereon.”
The interpretation of Section 198(3) has been considered in a long line of cases and the position of the law is now settled that a court may not refrain from exercising its discretion in favour of the accused, if at the close of the case for the prosecution, there is no case for the accused to answer.
This is even where the court has reason to suppose that the inadequate evidence adduced by the State might be supplemented by the defence’s evidence.
This was said in the case of State v Kachipare 1998 (2) ZLR 271(S), 275.
The court will acquit because it is the duty of the State to prove its case, not for accused to bolster the State case in his or her evidence.
Where the court considers that there is no evidence that the accused committed the offence, it has no discretion, but to acquit him or her at the close of the State case.
The court shall 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, or
the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.
A court shall acquit at the end of the State case where the evidence of the prosecution witness has been so discredited during cross-examination or is so manifestly unreliable that no reasonable court could safely convict on it.
This applies in the cases where the credibility of a witness or their evidence is so utterly destroyed during their testimony that no part of his or her material evidence can possibly be believed.
Where an accused is represented, it is expected that his or her legal practitioner would make an application for discharge where any of the grounds above for that application to succeed exist.
Where the accused is not represented, the court can decide on its own initiative if the accused should be put to his or her defence.
The court can, on its own motion, discharge an accused person at the close of the State case if it appears to it that there is no case for the accused to answer in his or her defence.
An objective prosecutor should withdraw the case against the accused if after all the State witnesses have testified and there is no case for the accused to answer in his or her defence.
If the prosecutor cannot withdraw the case at the close of the State case, he or she can at least consent to the application for discharge by the accused.
It is not enough for the prosecutor, in response to the application, to stand up to tell the court that he or she abides by the record.
While that does not mean anything, it is taken to mean that the prosecutor will be telling the court to just read the record and decide for itself which way it should rule.
It is not a judicious exercise of a discretion by the court to put an accused to his or her defence with the hope that an accused should testify in order to bolster the State case, which standing alone would not otherwise bring about a conviction of the accused.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
