Securing the presence of witnesses
Witnesses are brought to court in two ways: by warning them to appear, and by serving them with subpoenas.
The Police frequently warn (i.e. order) witnesses to appear in court on a particular date and at a particular time. The warning may be given orally or in writing. A warning by the police has no legal effect, but is a convenient way of getting witnesses to court; on the other hand, a witness cannot be punished for failing to appear in court in response to such a warning.
Similarly, courts occasionally warn (i.e. order) people who are in court to remain in attendance as witnesses or to attend at a future date. Again there is no legal basis for such a warning, and if the person refuses to remain in attendance, or doesn’t attend court at the future date, it is doubtful if the court can impose any sanction on him.
A subpoena is a document requiring a person to attend court as a witness on a specified date and at a specified time. It may also require the person to produce to the court any books, papers or documents (in which case it is called a subpoena duces tecum).
A subpoena may be issued at the instance of either the prosecutor or the accused. The registrar, assistant registrar or clerk of the court where the trial is to be held must subpoena witnesses for the defence on the application of the accused if the accused satisfies him that he cannot pay the necessary costs and fees, and that the witnesses are necessary and material for his defence. If the registrar or clerk refuses to issue a subpoena for the defence, the accused can have the application referred to a judge or magistrate, who may grant or refuse it or defer a decision on it until evidence has been led at the trial.
Subpoenas are served, usually by police officers, either personally or by handing a copy to a person who is apparently at least 16 years old and who apparently lives or is employed at the witness’s residence or place of business.
When a witness attends court in obedience to a subpoena, he must remain in attendance until excused by the court. If he fails to attend or to remain in attendance he may be arrested under a warrant issued by the judge or magistrate, who may have him detained or may release him on a recognizance with or without sureties. In addition, the judge or magistrate may inquire into his failure to obey the subpoena and may sentence him to a fine of up to level 3 and/or imprisonment for up to three months. Before imposing sentence, however, the judge or magistrate should afford the witness an opportunity to explain himself and, if necessary, to obtain legal representation.
Exclusion of witnesses from courtroom
The court may, at any time during a trial, order that anyone who is to be called as a witness, apart from the accused, must leave the court and remain outside until called. The court may also order that a witness who has given evidence must remain in court. It is accepted practice that witnesses should remain outside the court until they are called to give evidence; this prevents them tailoring their testimony to fit in with evidence that has already been given. Likewise, keeping witnesses who have testified in the courtroom will prevent collusion between them and witnesses who have yet to testify.
Sometimes the prosecution has to call witnesses who are reluctant to give evidence against the accused: perhaps because they are related to the accused, or because they are his friends or employees, or for some other reason. In such cases it may be difficult for the prosecutor to extract evidence from the witnesses without cross-examining them, and so he or she may ask the court to declare them hostile.
Not all witnesses who are related to or friendly with the accused are hostile, and before a court will declare a witness hostile the witness must show an unwillingness to tell the whole truth. As stated by De Villiers JP in Meyer’s Trustee v Malan 1911 TPD 559 at 561:
“The court must come to a decision as to whether the witness is adverse, i.e. hostile, from his demeanour in the box, his position towards or relationship to the party calling him, and from the general circumstances of the case.”
The court has a discretion whether or not to declare a witness hostile, and the court’s discretion will not lightly be altered on review or appeal.
Once a witness has been declared hostile, he or she may be cross-examined by the prosecutor.
What is said above about prosecution witnesses who prove hostile applies equally to defence witnesses who prove hostile to the accused.
Discrediting or impeaching witnesses
If a prosecution witness gives evidence that is inconsistent with a previous statement he or she made to the police the prosecutor may be obliged to disclose the fact to the court or the defence lawyer (the circumstances in which the prosecutor is obliged to do so are set out earlier). If the discrepancy is not one which the prosecutor is obliged to disclose (i.e. if it is not material) or if the prosecutor wants to discredit the witnesses’ evidence completely so that the court will not rely on it, he or she may impeach the witness.
This involves confronting the witness with his previous statement. The court must first be informed of the discrepancy, then the witness must be asked if he made the statement; he must be given sufficient particulars about when and where the statement was made to allow him to identify it. If the witness denies making it, then the police officer who recorded it should be called, plus any interpreter. If the statement is proved, or the witness admits making it, the witness must be asked to explain the discrepancy. This is the course to follow if the prosecutor does not want the witness’s evidence to be used.
The fact that a witness has been proved to have made previous inconsistent statement does not necessarily mean that his or her evidence must be totally disregarded. The witness’s explanation for the inconsistency may be acceptable, and the inconsistency may not affect the whole of the witness’s evidence. But if the inconsistency applies to the whole of his or her evidence it will discredit the evidence completely.
What has been said about impeaching prosecution witnesses applies equally to the impeachment of defence witnesses if they give evidence inconsistent with previous statements.
Protection of vulnerable witnesses
Under Part XIVA of the Criminal Procedure and Evidence Act [Chapter 9:07], vulnerable witnesses — i.e. persons who are likely to suffer substantial emotional stress from giving evidence, or are likely to be intimidated — are afforded some relief from the stresses of giving their evidence in open court. The most usual categories of vulnerable witnesses are women and children who are victims of crime.
Measures that can be taken to protect vulnerable witnesses
If a court considers that a witness is vulnerable and needs protection, the court can do any of the following, either on its own volition or on application of the prosecutor or accused:
- appoint an intermediary or a support person for the witness;
- direct that the witness should give evidence from a place, in or away from the accused’s presence, where the witness is likely to suffer less stress or intimidation (but if the witness is to give evidence away from the accused’s presence, he and his lawyer must be able to see and hear the person giving evidence, whether through a screen or closed-circuit television or some other means);
- adjourn the proceedings to another place, where the court considers he or she will be less likely to be subjected to stress or intimidation;
- make an order excluding the public from the proceedings.
Note that these measures do not include allowing the witness to give evidence before the trial, or training or coaching the witness in how to give his or her evidence. Nor do the measures cover protecting witnesses after they have given evidence.
Before taking any such action the court can interview the witness to assess his or her vulnerability, and must give the prosecution and defence an opportunity to make representations.
Persons who are appointed as intermediaries for vulnerable witnesses must be either court interpreters or former court interpreters, or persons who have undergone approved training. Support persons will be parents or guardians of the witness, or other persons whom the court considers can give the witness moral support. Where an intermediary has been appointed all questions must be directed to the witness through the intermediary (except for questions put by the court itself) and the witness’s answers may be relayed to the court through the intermediary.
See Reid Rowland Criminal Procedure in Zimbabwe p. 8–2.
From the Latin sub poena, meaning “under penalty”.
In Latin, “under penalty bring with you”.
Section 229(3) of the Criminal Procedure and Evidence Act.
Section 229(4) of the Criminal Procedure and Evidence Act.
Sections 9 and 10 of the High Court (Criminal Procedure) Rules, 1964 (SI 452 of 1964).
Section 237 of the Criminal Procedure and Evidence Act.
A fine of level 3 is currently fixed at $60 (First Schedule to the Criminal Law Code, as substituted by the Finance Act, 2019 (No. 1 of 2019).
Section 237(3) of the Criminal Procedure and Evidence Act.
Reid Rowland Criminal Procedure in Zimbabwe p. 8–4.
Section 194(3) of the Criminal Procedure and Evidence Act.
Cited in Hoffman & Zeffertt The S.A. Law of Evidence 4th ed p 455.
Steenkamp v Street 1923 TPD 208, cited in Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 455.
S v Mazhambe & Ors 1997 (2) ZLR 587 (H). The procedure is set out in section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Section 319B of the Criminal Procedure and Evidence Act [Chapter 9:07].
As to the dangers of training and coaching witnesses, see the English case of R v Momodou & Anor [2005] 2 All ER 571 (CA) cited in S v Le Roux (A746/10) [2011] ZAWCHC 367 (1 September 2011).
Sections 319C(2) and 319D of the Criminal Procedure and Evidence Act [Chapter 9:07].
Section 319F of the Criminal Procedure and Evidence Act [Chapter 9:07].
Section 319G of the Criminal Procedure and Evidence Act [Chapter 9:07].