Drawing adverse inferences from accused's silence (Zimbabwe)
In terms of the Criminal Procedure and Evidence Act the court may draw certain adverse inferences from the accused's silence at different stages. On the basis of such inferences, the accused's silence may be treated as evidence corroborating any other evidence given against the accused.
Adverse inferences can be draw at the trial if, at proceedings to confirm a statement allegedly made by the accused to the police, the accused remains silent and does not mention any fact which, in the circumstances, he could reasonably have been expected to have mentioned. If at his trial he challenges the statement on the basis that he did not in fact make it or he did not make it freely and voluntarily, the court may draw adverse inferences from his earlier failure to mention the facts: s 115 CPEA.
Adverse inferences can be drawn if the accused pleads not guilty (or the magistrate enters a plea of not guilty because the accused refuses to plead) and, upon being called upon to give his defence outline, he fails to mention any fact relevant to his defence which, in the circumstances existing at the time, he could reasonably have been expected to have mentioned. Such adverse inferences can be drawn by the court from this earlier failure to mention these facts when it determines his guilt for the offence charged or any other crime which he may be convicted of on that charge: s 189(2) CPEA.
If the accused gives evidence in his defence and refuses to answer any questions put to him without any just cause for his refusal (such as on the grounds of privilege), adverse inferences may be drawn by the court from his failure to answer the questions: s 199 CPEA.
Questions put by prosecutor or court
Even if the accused has declined to give evidence in his defence, he can be questioned by the prosecutor or the court. If, without just cause, he refuses to answer such questions adverse inferences may be drawn by the court from the failure to answer the questions: s 199 CPEA.
Note that in no case does the court have to draw an adverse inference. The accused's failure to mention particular facts may be quite explicable.