Pre-conviction disclosure of previous convictions of accused and bad character (Zimbabwe)
Normally it is totally impermissible for the State to prove the previous convictions of the accused before he has been convicted of the offence with which he is being charged. The prosecutor may not refer to the previous convictions of the accused prior to the accused being found guilty of the charge. Nor may the prosecutor ask the accused when he is testifying whether he has previous convictions: s 324 CPEA. The reason for this is obvious. The judicial officer should be solely concerned with whether the accused has committed the present offence. If he knows that the accused has a string of previous convictions, this might mean that the judicial officer will be biased against him and will find him guilty on the basis of his previous criminal tendencies rather than because his guilt on the current offence has been proved beyond reasonable doubt. For this reason, if the previous convictions are disclosed before the accused has been found guilty, this will constitute a gross irregularity which will lead to the proceedings being set aside.
It is also impermissible for the State to refer to the fact that the accused has been charged with a criminal offence on a previous occasion and was acquitted on a technicality.
There are, however, some exceptions to this general rule that evidence of previous convictions must not be introduced before the accused has been convicted. These are:
Where accused charged with receiving stolen property.
If the accused is charged with this offence, in terms of ss 305 and 307 CPEA the State is permitted at any time during the trial to lead evidence that the person was found in possession of stolen property within the period of twelve months preceding the time when the person was first charged with the current offence or and evidence that within the preceding five years he has been convicted of an offence involving fraud or dishonesty. The accused must be given three days written notice before such evidence is introduced.
This evidence can then be taken into account by the court by the court in deciding whether or not the accused knew that the property he had in possession on the present occasion was in fact stolen.
Evidence of bad character
Although evidence of previous convictions or bad character of the accused may not normally be introduced before conviction, in terms of s 290 CPEA such evidence can be introduced before conviction if
- the accused has given evidence of his own good character or he or his lawyer has asked a witness questions to try to establish his good character;
- aspersions are cast upon the character of the prosecutor or State witnesses by the defence;
- The accused has given evidence against another person charged with the same offence.
In Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) it was held that the magistrate had permitted a serious irregularity to take place, the adduction of evidence of the X's bad character, even though X's cross-examination of the complainant had not even exposed himself to cross-examination as to his character. Although s 290 CPEA allows the accused to be cross-examined as to his character, the scope of the section is limited. X must have some latitude to examine on credibility without exposing himself to the extremely damaging prospect of being examined on his character. He should only be vulnerable to such an attack where he has attacked the credibility of a State witness, by attempting to impeach character, on an issue not being an essential element of the charge or offence, and to a degree not adjudged warranted, and where the court in its discretion permits such an attack upon the accused.