Accomplice evidence (Zimbabwe)

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Approach of courts

For a number of very cogent reasons the courts approach accomplice evidence with considerable caution.

What are accomplices?

An accomplice is a person who has participated or assisted in the commission of a crime, other than the perpetrator(s) and other than an accessory after the fact.. However, for the purposes of the law of evidence, the word has a wider meaning. It means any person who has committed an offence in connection with the same criminal transaction which forms the subject-matter of the charge; it can also mean a person who appears to know a good deal about the offence and has some reason of his own to serve in giving evidence. The reasons why the evidence of such a person is regarded with caution are set out below. The matter is dealt with in greater detail in Hoffman and Zeffertt South African Law of Evidence 4 ed at pp 575-6.

An accomplice who is testifying against others may or may not be on trial himself. A person who is jointly charged with others may deny that he was involved in the crime at all. He may testify that he witnessed one or more of the other accused commit the crime. He may admit that he was involved but claim that his involvement was minor and that the major role was played by his fellow criminals. The other type of case is where an accomplice testifies after the authorities have dropped charges against him in return for his giving evidence against his fellow criminals.

Dangers of reliance on accomplice evidence

The reasons why the evidence of accomplices (in the wide sense of the term) are approached with caution are as follows:

Firstly, an accomplice is a person who is himself guilty of criminal conduct and might easily be a person of bad character who does not have a high regard for the truth.

Secondly, the accomplice may tell lies against another person in the hope that he will secure an indemnity from prosecution, that he will receive a lighter sentence or, if he has already been sentenced, that he will receive clemency if he testifies against the other person. He may have received promises from the police that they will go easy on him provided that he testifies against another person.

Thirdly, the accomplice may wish to implicate one person falsely to shield someone else. He may do this, for instance, because he is afraid of the real culprit or he may greatly exaggerate the role played by a fellow criminal in order to minimise his own role in the crime.

Lastly, the inside knowledge of the accomplice of how, when and where and by whom the offence was committed gives him a golden opportunity to engage in convincing deception when giving evidence. The only thing he has to change in what is otherwise an entirely true version of the facts is the identity of his accomplice. His inside knowledge puts him in a position where he is peculiarly equipped to convince the unwary that his lies are the truth.

However, it should be noted that there are varying types of accomplices. Some are more culpable than others and thus are more dangerous to believe than others. In Moyo S-170-90, on the other hand, the Supreme Court found that the accomplice was simply a person caught up in an evil system and was not trying to shift the blame from his shoulders and therefore there was no danger in relying upon his testimony.

Because of these dangers of false incrimination, the courts must approach the evidence of accomplices with extreme caution. They must be satisfied that the evidence in question can safely be relied on and that the dangers of false incrimination have been eliminated.

Single accomplice evidence

Where the case against the accused rests on the evidence of a single accomplice s 270 [254] of CPE applies. This says that a court may convict the accused provided there is competent evidence other than the single and unconfirmed evidence of the accomplice which proves to the satisfaction of the court that the crime was actually committed.

The courts have interpreted this provision to mean that even where there is no proof aliunde of the commission of the offence the accused can still be convicted if there is corroboration in a material respect of the evidence of the accomplice. In Mubaiwa 1980 ZLR 477 (A) at 479H-480A this is stated as follows:

The purpose of this section is that the court must be satisfied that the crime to which the accomplice testifies has, in fact, been committed. If not, there can be no conviction at all. Even where there is no proof aliunde that the crime has been committed, the statutory requirement can still be satisfied if there is corroboration in a material respect which convinces the court that the accomplice can safely be relied on when he says the crime was committed, though it need not directly implicate the accused. In such a case the requirement is satisfied because, despite the lack of proof aliunde of the commission of the offence, the accomplice is no longer 'single and unconfirmed'.

In Lawrence & Anor 1989 (1) ZLR 29 (S) the Supreme Court laid down that with single accomplice testimony there should be a two pronged enquiry. The court must first satisfy itself that the offence with which the accused is charged has been committed. Secondly, the court must look for corroboration, for if there is no evidence aliunde proving the commission of the offence, then there can still be a conviction if the court is satisfied that there is corroboration of the evidence of the accomplice sufficient to satisfy the court that the witness is to be believed.

See also Moyo 1989 (3) ZLR 250 (S)

Thus, if the evidence of the accomplice is single and unconfirmed, there must be proof aliunde of the commission of the offence. If, on the other hand, there is material corroboration of the testimony of the accomplice, the evidence is no longer single and unconfirmed and there need not be proof aliunde of the commission of the offence.

Co-accused implicating one another

Where two or more persons are jointly charged with an offence and each gives evidence blaming the other for the offence, the evidence of each is admissible against the other, but the court must approach the evidence with care, since there is a risk that either or both may be seeking to protect himself by telling lies: Sambo S-22-90.

Warning to accomplices

It is obligatory for judges and magistrates to warn accomplices who are testifying in conformity with the direction given in Simakonda 1956 R & N 463 (SR) at 465B-C. See also Ncube & Anor 1975 (2) RLR 150 (A) at 151H-152A and Ngara 1987(1) ZLR 91 (S) at 96G.The court should warn the accomplice that what is expected of him is to tell the truth.

The warning that the accused must answer questions "to the satisfaction of the court" can be misleading when translated into the vernacular as it may give the impression to the accomplice witness that the evidence required of him to "satisfy" the court is evidence which incriminates the accused, even if this evidence is not the truth. The judicial officer, in warning the accomplice, must emphasise that the court is interested only in the truth, whether it incriminates or exculpates the accused.

As regards the accomplice who has already been convicted and who is presently serving his sentence, he should be advised that exaggerating the part allegedly played by the accused or minimising his own role will not affect the sentence in any way.

As regards the unconvicted accomplice, in terms of s 267 CPEA, he must be advised that:

  • he is not obliged to give evidence;
  • if he testifies, questions may be put to him which might incriminate him in regard to the specified offence;
  • he will be obliged to answer any question that may be put to him despite the fact that the answer might incriminate him in respect of the specified offence (or some other offence for which he could be found guilty on the basis of the charge relating to the specified offence);
  • if he answers frankly and honestly all questions put to him he will be discharged from prosecution in respect of the specified offence (or from any other offence for which he could be found guilty on the basis of that charge.)

See Hoffman and Zeffertt South African Law of Evidence 4th Ed p 239.

Reducing dangers

The safest way to eliminate the risk of false incrimination of another by an accomplice is to look for corroborative evidence implicating the accused.

The evidence of one accomplice can corroborate the evidence of another. The court, however, must be satisfied that the testimony of both accomplices is credible and that there has not been an opportunity for the accomplices to conspire together before testifying in order to concoct a false story to implicate the accused.

In Zata S-64-91 a visitor to Zimbabwe alleged that he had paid a bribe on demand to a junior customs officer who had handed it over to the appellant. The junior officer confirmed his story. As the visitor was a stranger to the customs official and they did not have the same interests to serve, their evidence could be given credence and could be used to corroborate each other's testimony.

It is usually dangerous to convict without corroboration of the accomplice's evidence. Thus in Machakata S-106-89 there was no corroboration and the court quashed the conviction. The appellant had been found guilty of stock theft. It was alleged that he had instructed two of his employees to go and steal cattle for him. One of these employees, P, gave evidence for the State and the entire State case rested on his testimony, which was not corroborated. The appellant denied that he had given such an instruction to the two employees and another of his employees, E, corroborated his testimony. The Supreme Court found that the trial court had only paid lip service to the cautionary rule. P's evidence had not been rigorously examined to ascertain whether or not he may have falsely implicated appellant. P's uncorroborated evidence was open to question.

Sometimes, however, even without corroborative evidence, the court can convict a person on the basis of the evidence of a single accomplice if the circumstances are such that the court can properly be quite satisfied that the accomplice is telling the truth. For example, if the accomplice gives convincing evidence against the accused and the accused adamantly refuses to give evidence and maintains his right to silence, there is a reduced risk of relying on the evidence of the accomplice in convicting the accused. If the accused were innocent one would have expected him to have vigorously denied the false testimony against him. So, too, there is a reduced risk of reliance on testimony by an accomplice against a person with whom he has a very close relationship and with whom he has been on good terms previously, because here it would be unlikely that the accomplice would implicate him falsely.

Imperfections in evidence of accomplice

Where there are imperfections in an accomplice's evidence and there is no corroboration of his evidence implicating the accused, the court must still consider whether there are other features which reduce the danger of false incrimination and, if there are, whether they reduce it to the point where there is no reasonable possibility that the accused has been falsely incriminated: Juwaki & Anor 1964 RLR 604 (A).

In Lawrence & Anor 1989 (1) ZLR 29 (S), it was held that, despite the imperfections in the accomplice's evidence, there was sufficient corroboration to eliminate the danger of false incrimination.

Disclosure of inducements to testify

In Lawrence & Anor, the Supreme Court stated that it is desirable that the court be informed of any inducement or promise made to an accomplice when the accomplice is called upon to testify, because the danger of the false incrimination is greater when an accomplice has been promised a pardon or remission. It further pointed out that is the court, not the Attorney-General, which should decide whether or not the accomplice has given satisfactory evidence justifying fulfilment of the undertaking to recommend remission.


The courts are obliged to approach accomplice evidence with extreme caution because of the dangers of false incrimination by the accomplice. Although it is not essential that the accomplice evidence be corroborated, the presence of corroborative evidence is usually the best safeguard against false incrimination. Slight imperfections in the accomplice's evidence do not necessarily discredit it, especially if the material portions of that evidence are corroborated. The evidence of one accomplice can corroborate the evidence of another, provided that the court is satisfied that the accomplices did not conspire together to give an agreed false story against the accused. Where the evidence of a single accomplice is relied on, the judicial officer is obliged to consider whether there is material corroboration for the witness' testimony. If there is such corroboration, the court may convict even if there is no proof aliunde of commission of crime. If there is not, it may convict the accused only if there is evidence aliunde that the crime was committed.

Approach of defence

At the start of the testimony of an accomplice who is testifying against his client, the defence lawyer should ensure that the court has warned the witness in the terms required by the law. If the court omits to do this, the defence lawyer should ask it to do so before the witness starts to testify.

All State witnesses who are accomplices must be vigorously cross-examined to expose shortcomings in their evidence. If the accomplice giving evidence has been promised immunity from prosecution in return for testifying on a satisfactory basis against the accused, he should be closely questioned as to whether he is telling lies against the accused or exaggerating the role played by the accused in order to please those who offered him immunity and thereby receive such immunity. He should also be closely questioned as to whether he has received any instructions as to what he should say in his testimony. If the accomplice has already been tried and sentenced before he testifies against the accused, the defence lawyer should carefully probe what incentives have been made to him to testify and whether this may have led him to distort his evidence against the accused.

In his address the defence lawyer will obviously lay emphasis on the dangers of reliance on the evidence of the accomplice, especially if there has been no corroboration of his testimony. He will seek to persuade the court that it is not safe to rely upon the accomplice evidence in question and that the dangers of false incrimination have not been eliminated.

Where the State case rests on the evidence of a single accomplice and the State has produced neither any evidence which materially corroborates the evidence of the single accomplice nor any evidence which provides proof aliunde of the commission of the crime, then the defence must point these things out to the court and call upon the court to place no reliance on the accomplice's evidence.

See Zimbabwe Criminal Defense Manual