Reopening of State case and evidence from State in rebuttal of a defence (Zimbabwe)

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It is not just and proper for the State to be allowed to re-open its case to lead evidence that was available to it from the beginning of the proceedings in order to rebut a defence which the State knew of at the beginning of the proceedings. To allow such evidence to be led after the close of the defence case was unjust to the defendant, as it gave the State an opportunity to rebuild its case: Munyaradzi S-74-89.

Sometimes the evidence of a defence witness may reveal a line of defence that could not have reasonably have been foreseen by the prosecutor and which was not indicated during the questions put during cross-examination of State witnesses. In such cases the prosecutor may ask the leave of the court to call evidence in rebuttal of the defence. The court has the discretion as to whether to grant leave. It should normally not grant leave if by the exercise of due diligence the prosecutor could have called the evidence before closing his case. There must have been something in the nature of a surprise or an unexpected new issue introduced by the defence.

This sort of situation should not normally arise in a case where X is legally represented as the defence outline would usually have alluded to the defence and the defence lawyer would have put the existence of the defence to the State witnesses. Thus the prosecutor can hardly claim that there was a surprise element late on in the trial. On rare occasions, however, a defence which did not emerge from his client's instructions and had not been referred to when a witness was interviewed may suddenly be alluded to by the witness when he is giving evidence, taking both the defence lawyer and the prosecutor by surprise.


See Zimbabwe Criminal Defense Manual