Defense outline (Zimbabwe)
In the magistrates court
Section 188(a) CPEA lays down that, if X pleads not guilty in a trial in the magistrates court, the prosecutor must first give an outline of the nature of the State case and the material facts on which he relies. The defence will be requested to give an outline of his defence and a summary of the evidence which each witness will give in sufficient detail to inform the State of all the material facts on which X relies in his defence.
In practice what often happens is that before the case is heard the State provides only a general summary of the State case and does not provide a summary of the evidence of each witness. Frequently the defence will not supply its defence outline in advance of the commencement of the case but the defence outline will only be handed over to the State just before the case begins or at the beginning of the case.
In the High Court
When an X is indicted for trial in the High Court, in terms of s 66(6) CPEA, he must be served with the indictment which sets out the details of the charge against him and a notice of trial. At the same time he will be served with
- a document containing a list of witnesses the State will call at the trial and a summary of the evidence which each witness will give, sufficient to inform X of all the material facts upon which the State relies; and
- (b) a notice requesting X
- to give an outline of his defence, if any, to the charge; and
- (ii)to supply the names of any witnesses he proposes to call in his defence, together with a summary of the evidence which each witness will give, sufficient to inform the State of all the material facts on which he relies in his defence.
In terms of s 66(8) CPEA, where X is legally represented, the legal representative must send the defence outline to the office of the Attorney-General and lodge a copy with the registrar of the High Court at least three days before the trial (Saturdays, Sundays and public holidays excluded.)
Drafting the outline
Before drafting the outline, the defence lawyer must have studied carefully the basis of the State case. He must be fully conversant with the essential elements of the crime charged, as the defence case may revolve around submissions that one or more vital ingredient of the crime was absent.
Before the defence outline is compiled, the defence lawyer should also obviously have a thorough knowledge of his client's case. Unless full instructions have been taken from the client, the lawyer will not be in a position to compile an appropriate outline of defence and to conduct a proper defence when the matter is tried.
The legal practitioner must ensure that he has sufficient time to investigate X's version of what happened before the defence outline is finalised. If X has witnesses whom he wishes to call, these witnesses should, wherever possible, be interviewed before the defence outline is handed in. It is certainly not going to do the client any good if the defence outline says that witnesses will say such and such and thereafter the evidence which they give is a totally different version of the facts.
If for some valid reason it is not possible to interview some witnesses before the trial is due to start, apply for a postponement of the case so that the witnesses can be interviewed. Unfortunately not infrequently pro deo cases have been assigned a short time before the case is due to be heard. It is the duty of the lawyer to ensure that he has adequate time to prepare the case by way of interviewing his client and witnesses and drafting a defence outline. If he is left with inadequate time to prepare properly, he is duty bound to apply for a postponement of the case so that he can have an adequate amount of time for preparation. Even if the reason why he has been left with inadequate time for preparation is his own dilatoriness, he is obliged to apply for a postponement and to explain honestly to the court why it is that he is unable to proceed with the case at the present time. It is improper and completely unfair to his client for the lawyer to go ahead with the case when he is inadequately prepared.
Another situation which sometimes arises is where a senior partner in a law firm hands a criminal case over to a legal assistant at the last moment, because his senior has double dated himself possibly, and instructs the legal assistant to appear in the case. The legal assistant must apply for a postponement he does not have enough time to prepare to argue the case, even though this may be against his instructions from his senior. The client must not be prejudiced by the disorganisation of the senior.
The purpose of the defence outline is to inform the State and the court about the nature of the defence and to define the issues between the State and the defence.
All material facts must be included. If they are not, the State is likely to cross-examine on basis of whether X told his defence counsel about these facts when he was instructing him and, if he did, why these facts are not in the defence outline.
In the case of Mandwe 1993 (2) ZLR 233 (S) the court pointed out that the outline of the defence cases is similar in function to pleadings in a civil trial, serving to identify what may be in issue and advising each side of the substance of the matters in issue. Further, because the defence outline is a categorical assertion by X of facts on which he relies for his defence, any significant and unexplained departure by the accused in evidence from the outline may be a matter for comment or even adverse conclusion.
However it was pointed out in Pandehuni 1982 (2) ZLR 133 (S) at 135 that X's outline is no more than just that. It is merely an initial outline, given in response to a similar outline of the State case. It is not a comprehensive and detailed exposition such as would be expected in the course of evidence in chief given in the normal way after the State witnesses have testified. This comment, however, was made in relation to an outline given by an accused who is not legally represented.
The defence outline is not supposed to be a detailed statement of the facts constituting X's defence and of everything that the defence witnesses will say. It is intended simply to portray the key aspects of the defence. Indeed, from a tactical standpoint, it is inadvisable to insert minute details into the outline, as there is then increased scope for discrepancies to arise between what is in the outline and what the defence witnesses say in court. These can be exploited by the prosecutor.
It is best simply to narrate the major aspects of the defence rather than to give a verbatim account of what X will say in court in his defence. If the defence lawyer gives an account of what X will say prefaced by the phrase "The accused will say..." and X deviates from what the outline indicates he will say, then the prosecution will be likely to make much capital out of these discrepancies to the prejudice of X. On the other hand, if the nature of the defence is related in broad terms, it is then open to X to express his defence in his own words at the time of the trial.
Note must be made of the fact that the defence outline does not constitute evidence; it is merely a summary of the evidence which the defence intends to produce during the trial: Nyandoro 1987 (2) ZLR 66 (S).
Failure to give outline
Neither in the High Court nor in the magistrates court is X obliged to provide a defence outline when requested to do so. However, adverse inferences can be drawn from the failure to mention facts relevant to his defence at the start of the trial: s 189 CPEA.
In deciding whether X committed the crime:
- the court can draw such inferences as appear proper from the failure of X to mention facts relevant to his defence which, in the circumstances existing at the time, he could reasonably have been expected to have mentioned.
- the court may, on the basis of such inferences, treat X's failure to mention these facts as evidence corroborating any other evidence given against X.
It is thus normally very ill-advised in any case, where X is pleading not guilty, to decline to outline the defence at the start of the trial. About the only situation where non-submission of the outline may be justified is where the State does not have the evidence to prove its case and the defence does not want to provide ammunition upon which the State could build its case by outlining a defence case which is weak. Even in this instance it would seem that an outline could be submitted in which X simply states that he denies the charge and puts the State to the proof of the case against him. If the defence will argue that the facts upon which the State case is to be based do not constitute a prima facie case, this should obviously be set out in the defence outline.