20. DEFENCE CASE

Informing the accused of his rights

If the accused is not discharged, the court must ask him or his legal practitioner if he intends to lead evidence and if the accused himself will give evidence. If the accused is not legally represented, the court is obliged by section 198 of the Criminal Procedure and Evidence Act to inform him that:

  • he will not be allowed to call his witnesses, if any, until after he has given evidence or been questioned by the prosecutor or the court;
  • even if he chooses not to give evidence he is liable to be questioned by the prosecutor and the court;
  • if he gives evidence or is questioned and refuses to give an answer, he will be asked why he refuses to answer;and
  • if he persists in his refusal, the court may draw such inferences from the refusal as appear proper and that the refusal may be treated as corroborating any other evidence given against the accused.

This provision, in so far as it refers to the accused being questioned by the court and the prosecutor, and to inferences that may be drawn from a failure to mention facts, is unconstitutional in that it infringes the accused’s right to silence.  On the other hand, in the interests of a fair trial the court must inform an unrepresented accused of his right to give evidence and of the consequences of not doing so (i.e. failing to rebut the prosecution case) and must also inform him that if he chooses to give evidence he must do so before calling any other witnesses.

Defence evidence

Normally, the accused must give his evidence or be questioned by the prosecutor and the court before any other evidence is led for the defence, unless the court orders otherwise.  This prevents the accused from tailoring his evidence to fit that of his witnesses.  If he gives evidence the prosecutor has a right to cross-examine him.

If when giving evidence an accused person fails to mention facts, or lies, or is otherwise unreliable the court can obviously draw whatever inferences are appropriate.  On the other hand, if an accused person fails when giving evidence to mention facts relevant to his defence, the court should not necessarily draw adverse inferences, particularly if he is undefended and has mentioned the fact either to the police or in his defence outline or in cross-examination of State witnesses.

The prosecutor is entitled to cross-examine witnesses called by the defence, and following the cross-examination the accused or his legal practitioner is entitled to re-examine them.  What has been said previously in relation to cross-examination and re-examination of State witnesses applies equally here.

Questioning of accused

If the accused declines to give evidence, the prosecutor and the court are permitted by section 198(9) of the Criminal Procedure and Evidence Act to question him, and if he is legally represented his legal practitioner may question him afterwards.  This provision is probably unconstitutional by virtue of section 70(1)(i) of the Constitution, which states that an accused person has the right “to remain silent and not to testify or be compelled to give self-incriminating evidence”.

Section 198(6) as read with sections 198(8) & (9) and 199(1).

Reid Rowland Criminal Procedure in Zimbabwe p. 16–37.