High Court

In the High Court, after the accused has pleaded not guilty, the prosecutor may (and usually does) address the court in order to explain the charge and outline the evidence which he intends to lead.  He must not comment on the evidence.

Magistrates court

In a trial before a magistrate, once the accused has pleaded not guilty the prosecutor must make a statement outlining the nature of his case and the material facts on which he relies.  This statement must be recorded.  The statement should concisely outline the nature of the case and the material facts;  it should not contain evidence that the prosecutor does not intend to lead.  It is most irregular for the prosecutor to include the contents of any statement made by the accused — all he should say, if he intends to lead evidence of such a statement, is that the accused made a statement which will be tendered in evidence.

After the prosecutor has outlined his case, the accused must be asked to make a statement outlining the nature of his defence and the material facts on which he relies.  If the accused is not legally represented, the magistrate is obliged by section 188(b) of the Criminal Procedure and Evidence Act to advise him of his right to remain silent and of the consequences of exercising that right.  Section 189 of the Act goes on to say that if an accused fails to mention any fact which he could reasonably be expected to have mentioned, the court can draw adverse inferences from the failure and may treat the failure as corroborating other evidence against him.  This may well be unconstitutional because the accused has a right to silence and he cannot be penalised for exercising that right.

If the accused does make a statement:

• It may be taken into account in deciding whether or not he is guilty, but may not be taken into account in deciding whether he should be acquitted (i.e. discharged) at the end of the State case.
• If the accused departs from the statement in a material respect in any evidence he gives later in the trial, this may be a matter for comment and adverse conclusion.Note that this does not apply to the State:if there is a divergence between the outline of the State case and the testimony of the witnesses, an adverse inference will not be drawn unless the divergence is so great as to be utterly irreconcilable.This is because the State outline is often a précis of the witnesses’ statements, compiled by a police officer with little legal training, and is usually compiled without consulting the complainant or other witnesses.(But is this a real justification for the distinction between the defence and State outlines?A discrepancy is a discrepancy, whether it is in the State or the defence outline, and if it is material it should be explained.)

The court is entitled to put questions to the accused to clarify any matter with regard to the statement in order to establish which allegations in the charge are in dispute.  But the questioning must not go beyond that, and the court must inform the accused that he is not obliged to answer the questions — failure to inform the accused of this is an irregularity.