People implicated in the same crime may be tried together in the same trial. This covers:
- persons charged as actual offenders, accomplices, co-perpetrators or accessories, even if the extent of their participation was different and took place at different times;
- persons charged with receiving property obtained by means of a single crime, even if the receiving took place at different times.
As a general rule, the holding of a mass trial of a number of accused at the same time on charges that are not related to each other, is highly irregular, except in the circumstances described in section 159 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Under that section, people who are not implicated in the same crime may be tried together, if their crimes were committed at the same time and place or at the same place and about the same time. If they are tried together, the prosecutor must inform the court that evidence which is, in his opinion, admissible at the trial of [one of] those persons is also admissible against the other or others. The application of this provision (section 159 of the Criminal Procedure and Evidence Act) is unclear. While mass trials on charges that are unrelated to each other are undesirable, the provision probably allows joint trials to take place in the following circumstances:
- Several persons stealing maize from the same field at about the same time.
- Two or more people who committed perjury at the same trial in the same respect.
- Two motorists who negligently collide at an intersection.
As a general rule an accused person cannot demand that he be tried with anyone else. It is for the prosecutor to decide whether or not to try persons jointly or separately. While it is in the interests of society as well as justice that perpetrators of the same crime should be tried jointly, this does not mean that a trial is unfair because other possible perpetrators are not charged together with an accused. The ultimate question is whether a particular trial was unfair.
Where two or more persons are jointly charged, the court may at any time during their trial direct that the trial of one or more of them should be held separately from that of the other or others. The court may make such an order on the application of the prosecutor or the accused, but cannot do so mero motu. If the court orders a separation, the case subsequently proceeded with must be begun afresh.
It is well established that trials should be separated where one of the accused pleads guilty but the other pleads not guilty; if separation is not granted in such a case there is a danger that one of the accused will be prejudiced by evidence given by the other or others, whether under cross-examination or otherwise. Where possible the same judicial officer should try the various cases, and they should all be brought up at the same time for sentence. This avoids widely divergent sentences being imposed on equally blameworthy accused persons.
In many cases an application for separation of trials will be made by the defence, since the State has already decided to proceed against the accused persons together. If however one accused pleads guilty while the other or others plead not guilty, the prosecution may want to make an application for separation. The test, in deciding whether to order separation of trials, is whether a joint trial is likely to prejudice (i.e. to do an injustice to) the accused. A bare possibility of prejudice is not enough; it must be established that the joint trial is likely to do the accused an injustice. A trial court’s decision to refuse separation will be interfered with on appeal only if the decision amounted to such a gross misdirection that it resulted in a failure of justice.
Points to note:
- As a rule, persons who are charged jointly should be tried jointly.
- The decision to separate trials is one for the judicial officer, and he must exercise his discretion in a judicial manner in the interests of justice, taking into account and considering all relevant facts.
- The fact that evidence may be admissible against one accused but inadmissible against another (e.g. a confession made by one of the accused may incriminate the other accused) is an important consideration, but not decisive.
- If a real danger exists that a separation of trials will hinder the State to such an extent in the presentation of its case that a miscarriage of justice results and a guilty person is released, this consideration is decisive.
- If an accused person wishes to call a co-accused to give evidence in his defence, and the co-accused refuses to testify, refusal to order a separation of trials will limit the accused in his defence and may result in his conviction being set aside on appeal or review.
Section 158 of the Criminal Procedure and Evidence Act.
S v Marimo & Ors, S v Ndhlovu & Ors 1973 (1) RLR 70 (G).
Section 159 of the Criminal Procedure and Evidence Act. The words in square brackets do not appear in section 159 but seem necessary to give it proper meaning. They do appear in the equivalent section of the South African Act (section 156 of the Criminal Procedure Act, 1977).
See Reid Rowland Criminal Procedure in Zimbabwe p. 15–13.
As in S v Tereza & Ors; S v Leonard & Ors 1971 (1) RLR 12 (G), which was decided before section 159 was enacted.
Section 172(e) of the Criminal Procedure and Evidence Act.
S v Shuma & Anor 1994 (4) SA 583 (E) at 586J.
S v Shaik & Ors 2008 (2) SA 208 (CC) at 232-3.
Section 190 of the Criminal Procedure and Evidence Act.
S v Kachipare 1998 (2) ZLR 271 (S) at 275D. But see S v Ndwandwe 1970 (4) SA 502 (N), where it was held that whether an application for separation is made or not, a court should make such an order if a possibility of prejudice exists.
R v Zonele & Ors 1959 (3) SA 319 (A) at 325D; S v Andeya 1981 ZLR 35 (A).
R v Rademeyer 1959 (2) R & N 100 (SR) at 101E-G; Reid Rowland Criminal Procedure in Zimbabwe p. 15–15.
R v Nzuza & Anor 1952 (4) SA 376 (A).
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 279.
R v Bagas 1952 (1) SA 437 (A) at 441F-G.
R v Office & Anor 1966 RLR 748 (A) at 750B-C; S v Shuma & Anor 1994 (4) SA 583 (E).
Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 208.
R v Kritzinger 1952 (4) SA 651 (W).
S v Shuma & Anor 1994 (4) SA 583 (E); Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 209.