Defences (Zimbabwe)
Types of defences
Where the acts alleged by the State are not denied, it is still possible for X to plead not guilty. The defences raised in these circumstances usually fall into two main categories, namely - (1) defences which affect the mental element of the crime and (2) defences which affect the lawfulness aspect.
Falling into the first category are defences such as mistake of fact and intoxication. With such defences the contention will be that X lacked the mens rea for the crime because he was mistaken about the facts at the time of the crime or was so drunk that he did not realise what he was doing. Into the second category fall defences such as lawful authority to do the act and lawful justification or excuse in the form of such defences as self-defence or compulsion. For full details of these defences see section 3 of A Guide to the Zimbabwean Criminal Law 2nd Ed. by G Feltoe.
Onus of proof
The defence does not usually have to prove that a particular defence applies. Once sufficient evidence has been introduced (whether by the defence or from prosecution witnesses) to put a defence in issue, the rule is that the State must disprove the defence. The only exceptions to this rule are:
- the defence of insanity, where the onus is on the defence to prove on a balance of probabilities that X was insane at the time of the crime;
- where a statutory provision provides for a defence to the statutory offence but the provision places the onus is on X to establish the existence of this defence.
See Mapfumo 1983 (1) ZLR 250 ( )