Evidence for the prosecution

After the opening address, the prosecutor should then call witnesses for the prosecution and adduce whatever evidence is admissible to prove that the accused is guilty of the crime charged, or any other crime of which he may be convicted on that charge.

Except where provision is made to the contrary in a statute, witnesses must give their evidence orally in open court.  They must give their evidence on oath, unless they are allowed to make an affirmation or they are too young or ignorant to understand the nature of an oath or affirmation or to recognise its religious obligation.

The prosecutor has a discretion as to the order in which he calls witnesses and leads evidence, but Reid Rowland (Criminal Procedure in Zimbabwe p. 16–29) suggests the following:

• Where there are several counts, the witnesses should be called, as far as possible, in the order in which the counts are set out in the charge.
• Exhibits should be put in as soon as possible.Where there are several counts, the exhibits should be put in following the order of the counts to which they relate.
• When there are several counts and numerous witnesses, the court should be told which count or counts each witness is giving evidence on.

A document that is admitted in evidence should be read out by the witness who is producing it (where it is susceptible of being read;  if it is a document such as a receipt or an account which cannot be read out easily, its nature and salient features should be explained by the witness).  If it is admissible on its mere production, then the prosecutor should read it out, unless the accused or his legal practitioner has consented to dispense with having it read out.

When examining a State witness, the prosecutor should not put leading questions (i.e. questions which suggest the answer the prosecutor is seeking), at least not in regard to matters which are or may be in dispute.  Leading questions may be asked to elicit introductory or undisputed matters, such as the witness’s name and address.

The prosecutor’s duty to disclose discrepancies between the evidence given by State witnesses and their statements to the police has been dealt with above, under the heading “Prosecution of the Case — Duties of Prosecutors”.

Once a witness is giving evidence it is grossly improper for the prosecutor to interview the witness privately (e.g. during an adjournment), without informing the court before doing so and explaining why the interview is necessary.

Cross-examination and re-examination of State witnesses

After each State witness has been examined by the prosecutor, the accused or his legal practitioner is entitled to cross-examine the witness.  The purpose of cross-examination is to elicit evidence which supports the cross-examiner’s case and, secondly, to cast doubt on the evidence given for the opposing party.  Accordingly, the accused or his representative should put to each State witness as much of the defence case as concerns that witness and inform the witness of other witnesses who will contradict him.  The witness should be given a fair opportunity to explain the contradictions put to him.  It is improper to let a witness’s statement go unchallenged in cross-examination and then argue later that the witness should not be believed.

Unrepresented accused persons often do not understand the purposes of cross-examination and are unskilled in its techniques.  The judicial officer has a duty, therefore, to assist such an accused who shows an insufficient understanding of his right to cross-examine and of the consequences of a failure to exercise that right , and should put pertinent questions to the witness.  A judicial officer must always grant the accused or his representative sufficient opportunity to cross-examine fully.

After a State witness has been cross-examined, the prosecutor is entitled to re-examine the witness, to enable the witness to explain his answers to questions put to him in cross-examination.  Hence questions in re-examination must be confined to matters arising from cross-examination.

Close of State case

After all the evidence for the State has been led, the prosecutor must close his case.  The judicial officer cannot close it if the prosecutor is unwilling to do so.  But if the prosecutor refuses to do so after the court has rejected an application for postponement, and declines to lead any further evidence, then the court may proceed as if the prosecutor had indeed closed the State case.

Discharge of accused at close of State case

If at the end of the State case the court considers that there is no evidence that the accused committed the crime charged or any other crime of which he might be convicted on that charge, the court must (“shall”) return a verdict of not guilty.  The court may do so of its own volition or on the application of the accused or his legal representative.  If an application for discharge is granted it terminates the case completely.

When application for discharge may be made

An application for the accused’s discharge should be made at the close of the State case and before the defence case has been opened.  There is no statutory provision requiring the court to inform the accused of his right to ask for a discharge.  On the other hand, as already indicated the judicial officer has a duty to ensure that an unrepresented accused understands his rights and the options open to him at all stages of the trial, so in appropriate cases the judge or magistrate should invite an unrepresented accused to apply for his discharge.

When discharge should be ordered

Section 198(3) of the Criminal Procedure and Evidence Act does not give the judicial officer a discretion to discharge, or not to discharge, an accused:

“If … the court considers that there is no evidence that the accused committed the offence charged, or any other offence of which he might be convicted … it shall return a verdict of not guilty.”

If the court considers there is no evidence against the accused, then it must discharge him by returning a verdict of not guilty.

There is a basis for ordering the discharge of the accused where:

• there is no evidence to prove an essential element of the crime;
• there is no evidence on which a reasonable court, acting carefully, might properly convict;
• the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

Because of the word “shall” in section 198(3), a court must discharge the accused in all these three circumstances;  the court has no discretion.

In making a decision whether or not to discharge the accused, the court must look at the State’s evidence;  the court is not allowed to look at the accused’s outline of his defence, except in so far as the accused has admitted any of the State’s allegations.  Also, the court is not allowed to refrain from discharging the accused on the ground that the inadequate evidence of the prosecution may be supplemented by defence evidence (i.e. on the ground that the accused may convict himself out of his own mouth or that a co-accused may incriminate him).

However, if the court omits to discharge the accused in these circumstances, and the accused subsequently gives evidence and incriminates himself, does that irregularity vitiate the proceedings?  In S v Kachipare 1998 (2) ZLR 271 (S), the Supreme Court held that it would not do so.  In Kachipare’s case the appellant and a co-accused were jointly charged with the murder of a child.  The appellant pleaded not guilty, the co-accused guilty, but as mentioned earlier there is a rule of practice in the High Court that when an accused person pleads guilty to murder a plea of not guilty is entered, so pleas of not guilty were entered for both the appellant and her co-accused.  The trials were not separated because no application for separation was made.  The only evidence led by the State which linked the appellant to the crime was purely circumstantial, and at the end of the State case the appellant’s legal practitioner applied for her discharge.  The trial judge refused it, wrongly, and when the co-accused came to give evidence she implicated the appellant.  The appellant was accordingly convicted.  On appeal it was argued that the trial court should have ordered the appellant’s discharge at the close of the State case.  The Supreme Court agreed with that submission, but said that the trial court’s failure to do so was not such an irregularity that it resulted in a substantial miscarriage of justice justifying the setting aside of the conviction in terms of section 12(2) of the Supreme Court Act [Chapter 7:13].  At page 280D-E Gubbay CJ said:

“I think there is good sense in the approach that a refusal to discharge the accused upon the conclusion of the State case is not in itself a sustainable ground for appeal against an ultimate conviction.   … [I]n order to decide whether the conviction was justified, it would be absurd for the appeal court to close its eyes to any evidence led on behalf of the accused … which, taken in conjunction with the State evidence, had been held correctly by the trial court to prove guilt conclusively.”

See also S v Noormohamed 2012 (1) ZLR 367 (H).

In S v Lubaxa 2001 (4) SA 1251 (SCA), the South African Supreme Court of Appeal came to a different conclusion, holding that failure to discharge an accused person at the close of the State case, where there is no possibility of a conviction unless the accused gives evidence and incriminates himself, is a breach of the accused’s constitutional right to a fair trial and ordinarily vitiates a conviction based exclusively on his or her self-incriminatory evidence.  The court suggested that the accused’s right to a discharge in these circumstances arises not necessarily from the right to silence or the right not to testify, but from an extension of the common-law principle that a person should not be prosecuted unless there is “reasonable and probable” cause to believe that he or she is guilty of a crime:  if a prosecution cannot be commenced without that minimum of evidence, the court said, a prosecution should cease when the evidence finally falls below that threshold.  This view, with respect, is preferable to the one expressed by our court in Kachipare’s case.

If the Prosecutor-General is dissatisfied with a decision to discharge the accused at the close of the State case, he may appeal against that decision to the High Court (where the decision was made by a magistrate) or to the Supreme Court (where the decision was made by a judge of the High Court).  In either case he must get leave from a judge of the appellate court before he can appeal.  On an appeal the appeal court may confirm the trial court’s decision or set it aside and remit the case for a continuation of the trial or for trial afresh before a different judicial officer.

The accused has no right to appeal against a refusal by the court to discharge him, until after the final determination of the case – i.e. until after the court has convicted and sentenced him.  Then he has a right to appeal, but his appeal will succeed only:

“if it is found that at the close of the prosecution’s case evidence justifying a conviction was absent and the defence case furnished no proof of guilt.”

It seems, however, that an accused may be entitled to approach the High Court to set aside on review a magistrate’s decision not to discharge him at the close of the State case, if he can show that the decision amounted to a gross irregularity.