Addresses at conclusion of defence case (Zimbabwe)

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In terms of s 200 CPEA both the prosecutor and the defence have the right to address the court at the conclusion of the defence.

Where the parties wish to exercise this right to address, the prosecutor must address first and then X's lawyer will address. If the defence lawyer has raised any point of law during his address, the prosecutor then has the right to reply to this point. In other words the defence has the last word on the facts and prosecutor has the last word on the law.

The defence address should be clear, concise and well ordered. A long, rambling, disorganised and confused address will not assist the defence case. The aim should be to give a lucid review of the case, stressing the strong points of the defence and the weak points in the State case. The defence lawyer must have a clear appreciation of main points advanced by the State against his client so that he can set out to defeat or counteract these points in argument. He must also have a proper understanding of what are the essential elements of the crime charged against his client, so that if the State has failed to prove any of these elements, he can point this out to the court in his concluding address.

All factors which cast doubt upon the reliability of the testimony of the witnesses called by the State must be highlighted. Matters such as -

  • the poor demeanour of State witnesses; and
  • contradictions in the testimony of State witnesses; and
  • contradictions between the testimony of the various State witnesses;

must be commented upon. If the State case rests upon identification evidence, any factors tending to make that identification suspect must be stressed. If the State case rests upon the uncorroborated evidence of an accomplice or a witness whose testimony requires special scrutiny such as a child witness or on the evidence of a single witness, the defence must draw the court's attention to the dangers of placing reliance upon such testimony, citing relevant case law where appropriate. (See Section 6 Rules of Evidence for the case law in this regard.)

In the final analysis, the defence will be seeking to persuade the court that the State has failed to prove its case beyond a reasonable doubt. Remember that the burden rests upon the State to prove its case beyond reasonable doubt. If reasonable doubt remains at the end of the case, X is entitled to be acquitted. (However, with some statutory offences, the onus is shifted to X to prove certain facets on a balance of probabilities in order to escape liability.)

Some of the more typical defence arguments are these:

  • The State has failed to prove that X was involved in the crime at all because, for instance, it has not disproved his alibi or the identification evidence is completely unreliable.
  • The State has failed to prove one or more of the essential elements of the crime charged. With crimes which require proof of subjective intention, the defence will often argue that the State has failed to prove that X had the necessary intention because, for example, he was very drunk and/ or was seriously provoked. If the crime is one requiring proof of negligence, such as culpable homicide, the defence may argue that X was not negligent because, in the particular circumstances of the case, the death was not reasonably foreseeable or that the accident was unforeseeable.
  • That although X intentionally did an act which resulted in harm, one of the recognised defences applies, such as self-defence or legal authority to act in that way.

It may be necessary to cite relevant case law in order to bolster these arguments.

If there are any legal points which need to be argued, reference to relevant legal authorities should be made.

The stronger the defence case, the more confidently it can be advanced. However, even if the State case is strong and the defence case is weak, the defence lawyer should try not adopt an approach which reveals to the court that he is simply going through the motions of addressing and that he has no faith whatsoever in the argument he is advancing. James Morton Handling of Criminal Cases has this to say:

Try not to ramble even in extremis. Try to end your speech on an uplifting note, rather than shuffle your papers and say "I don't think there is anything more I can help you with." Try above all to be positive. Believe in what you say. You are, after all, legitimately selling a point of view. If it looks as though you are unconvinced and uncaring, it is almost an invitation to convict.

Morton also cautions against the magistrate who nods and smiles during the defence lawyer's address. He says that you may think that he is nodding in agreement. This may not be the case.

The court will normally require the parties to address immediately after the defence case is closed. However, in very complicated cases, where the evidence is contradictory or where there are complex points of law, the parties may request an adjournment to prepare their addresses properly. Such requests for adjournment should normally be granted.

See Zimbabwe Criminal Defense Manual