Previous inconsistent statements by State witnesses (Zimbabwe)

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Hostile witness

A State witness may have made a statement to the police which was against the accused. However, when the case gets to court, because of his relationship to the accused or for some other reason, he may depart from his statement and give evidence favourable to the accused and become a hostile witness against the State case. A defence witness may also become hostile in this fashion.

Impeachment of witness

When a witness has become hostile the party calling the witness has the option to apply to impeach this witness in terms of s 316 CPEA. The object of impeachment is not to persuade the judicial officer to accept the evidence he gave in the original statement, but to destroy his reliability as a witness for either side. To have one's own witness impeached by the court the correct procedure is as follows:

  • The party calling the witness must first produce the previous apparently conflicting statement from the witness and the prosecutor should give the witness sufficient particulars of the statement to identify the occasion on which it was allegedly made.
  • The witness must then be asked whether he made the alleged statement. If the statement is signed, he may be asked to admit to the signature.
  • If the witness admits to having made the statement on the specified occasion, the statement should be put to him and he should be asked to admit or deny using the words alleged.
  • If the witness denies using the words alleged, the party calling the witness may apply to adjourn the case so that he can call witnesses to prove that the statement was made by this witness.(Where the statement has been interpreted, the interpreter must be called.)
  • If the witness admits using the words alleged, the statement may be used without further proof.

The witness must then be asked to explain the discrepancies between the statement on the occasion specified and his present testimony and what the truth of the matter really is.

See Muhlaba & Ors 1973 (1) RLR 178, Chari 1989(1) ZLR 231(S), C. Goredema "Procedural aspects relating to the impeachment of witnesses" 1989 Vol 1 No 6 Legal Forum 8 and The Prosecutor's Handbook pp 93-95.

The witness' explanation of the apparent conflict may be entirely acceptable. If it is not, it may be appropriate to impeach him in terms of s 316 CPEA. In Chari 1989 (1) ZLR 231 (S), after a State witness had given evidence inconsistent with a previous sworn statement, the prosecutor had produced his statement as an exhibit. Without further ado the magistrate summarily dismissed the witness and excused him from further attendance. The Supreme Court held this amounted to a gross irregularity. The prosecution should have laid a proper foundation for the impeachment and the defence should have had an opportunity to cross-examine the witness.

If the party calling a witness applies to have the witness declared hostile and the magistrate declares him to be adverse, the party can then proceed to cross-examine the witness. It is an irregularity for the party calling the witness to be permitted to cross-examine his own witness before the court has declared the witness to be hostile. Before the witness has been declared hostile the party may not go beyond putting the discrepancies and eliciting an explanation from the witness; he may not proceed with full blooded cross-examination of the witness.

Although the object of cross-examination of his own witness by the prosecutor may be to discredit all aspects of his testimony, the witness may say some things under cross-examination which in fact implicate the accused. As seen below, the State can then seek to rely on those portions of the testimony of this hostile witness which assist the State case.

Reliance on portion of evidence of impeached witness

Where a witness has been impeached after departing from his statement to the police and it is obvious that the witness is favourably inclined towards the accused, it is permissible to accept and rely on that part of his evidence that tends to incriminate the accused: Miller 1971 RLR 159 (A) and Mpofu and Anor S-150-89. In Miller at 160 it is stated that "it is quite illogical to say that, because the witness is trying to help the accused to the utmost extent, he must not be believed when he gives evidence which does not help the accused, but which tends to incriminate him... There is no ground in law... for rejecting out of hand those portions of evidence... which implicate him."

Inconsistent statements at another trial

In Mutters & Anor S-66-89 defence counsel had been allowed to put to State witnesses previous inconsistent statements they were alleged to have made in a previous trial. However, the magistrate had refused to admit as evidence the record of the previous trial. The Supreme Court held that by refusing to admit the record as evidence, the magistrate had precluded the defence from proving inconsistencies in the testimony of the witnesses, and had disabled himself from adjudicating on their credibility. The record was perfectly admissible and should have been admitted in evidence.

Summary

If a witness makes a statement which is apparently inconsistent with a previous statement made during investigations before trial, the party calling the witness may ask his witness if he made the previous statement and whether he had any explanation for the inconsistency. The party calling a witness can only cross-examine its own witness if the court has on application first declared him to be hostile.

The entire testimony of an impeached witness does not have to be disregarded. The State may ask the court to take into account portions of the testimony which are prejudicial to the accused.


See Zimbabwe Criminal Defense Manual