Discharge at close of State case (Zimbabwe)

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X's legal representative may apply for discharge at the close of the State case.

Section 198(3) CPEA provides that the court may return a verdict of not guilty after the State has closed its case and before the defence case has commenced.

Under this provision X is entitled to be discharged if there is no evidence either -

  • that he committed the offence charged or -
  • that he committed any other offence of which it is competent to convict him on the basis of the crime charged.

Even if there is no evidence that X has committed the crime charged the court must still consider what other crimes it is competent to convict X of on the basis of crime charged and whether, in the light of the evidence produced by the State, there is evidence that X committed any of these other crimes. If there is such evidence X must be put on his defence.

When considering whether to discharge X, the judicial officer must consider whether the State has made out a prima facie case against X. It is not necessary at this stage that the State should have proved guilt beyond all reasonable doubt.

In Tsvangirai & Ors HH-119-03 the judge stated that the court shall return a verdict of not guilty if at the close of the State case the court considers that there is no evidence that the accused committed the offence charged (or any other offence with which he could be convicted on that charge). Thus, the court must discharge the accused at the close of the case for the prosecution where there is no evidence to prove an essential element of the offence; there is no evidence on which a reasonable court, acting carefully, might properly convict; the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. Instances of the last such cases will be rare; it would only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed.

X must obviously be discharged if the State has been unable to lead any evidence whatsoever of the commission of the crime charged. This would be a very rare situation. If the entire case against X has collapsed, one would expect the prosecutor to withdraw the charge.

Usually some evidence will have been advanced by the State. The test to be applied is whether a reasonable court might convict X on the basis of that evidence. In Hartlebury & Anor 1985 (1) ZLR 1 (H), MCNALLY J elaborated further on the application of this test. He said that a court may order discharge where there is no evidence on which a reasonable court may convict. It may also order discharge where the evidence adduced by the prosecution is so discredited or manifestly unreliable that no reasonable court could safely act upon it or where there is no evidence to prove an essential element of the offence. These latter two grounds for discharge seem only to be particular illustrations of where the evidence adduced would not allow a reasonable court to convict. A reasonable court could not convict where the evidence led is totally unreliable or the State has failed to prove one of the essential elements of the crime charged.

If the defence lawyer applies for discharge in circumstances where it seems clear that his client committed the crime but there is some fatal flaw in the State case, it is tactful to adopt a somewhat self-deprecatory rather than a triumphant manner.

In Attorney-General v Bvuma 1987 (2) ZLR 96 (S) the Supreme Court decided that if the evidence led by the State is insufficient for a reasonable court to convict, the trial could should not refuse to discharge X at the close of the State case because it thinks that if X is put to his defence he could possibly provide a missing link in the State case. In other words, the onus is on the State to prove the guilt of X. If the State fails to produce evidence upon which a reasonable court could convict, the court should discharge X. It should not speculate on the possibility that the gaps in the State case might be plugged during the course of the defence case. Similarly, where X is jointly tried together with others, the possibility that the co-accused may give convincing evidence against X is not a proper basis for refusing to discharge when the State has failed to adduce evidence upon which a reasonable court could convict.

In Mpofu S-192-90 two persons were jointly charged with theft of money. The State failed to prove which of the two had stolen the money. The magistrate put the two on their defence as they "were throwing stones at each other" so as to enable the State to discover through cross-examination who committed the offence and who did not. At the end of the case the magistrate then convicted one of the two accused. The Supreme Court said this was a wrong approach. The magistrate should not have put either of the accused to their defence in the hope that he might be condemned by his co-accused.


If the court rejects the submission that no case to answer in a situation where the defence lawyer strongly feels that there were strong grounds for discharging him at the close of the State case, a decision will then have to be made as to how to proceed thereafter. James Morton Handling Criminal Cases A guide to preparation and defence (1986 Waterlow) says it will be extremely brave decision for the defence lawyer to simply close his case without calling his client or any defence witnesses. The State case would have to be very thin indeed to justify such action. If the defence lawyer intends to close the defence case without leading any evidence, he should consult with his client in order to advise him of the course of action he proposes to take and to obtain his authorisation to adopt this approach.

It must be noted that the accused has no right of appeal against refusal to discharge at the close of the state's case until after conviction: Hunzvi 2000 (1) ZLR 540 (S)

On a more general note legal practitioners should avoid what appears to be an increasing tendency to apply for discharge at the close of the State case as a matter of routine, even when it quite apparent that the State has made out a prima facie case. This indiscriminate and inappropriate approach has a deleterious effect and may tend induce a sceptical attitude on the part of judicial officers even in relation to genuine and well-based applications for discharge.

Summary

The defence can apply for discharge of X at the close of the State case if no prima facie case has been made out and no reasonable court could convict X of the crime charged on the basis of the evidence led by the State.

However, the court will not discharge X if the evidence led could lead to the conviction of X of some other charge which is a competent verdict for the crime charged.


See Zimbabwe Criminal Defense Manual