CRIMINAL PROCEDURE

Trial Procedure
QUESTIONING OF WITNESSES BY THE COURT (S
232 CPE)
• The role of the court is to try and ascertain the truth and is therefore
entitled to ask pertinent questions to both state and defence
witnesses.
• The court
• may at any stage subpoena any person as a witness or examine any
person in attendance though not subpoenaed as a witness, or may
recall and re-examine any person already examined;
• shall subpoena and examine or recall and re-examine any person if
his evidence appears to it essential to the just decision of the case.
• The court must however avoid “descending into the arena” and
assume the position of either the prosecutor or the defence lawyer.
• Neutrality must be evident through-out- see S v Konson
 Impeachment Of Witnesses
A hostile witness (to either party) may give evidence in
court which contradicts his previous statement
• It shall be competent for any party in criminal
proceedings to impeach or support the credibility
of any witness called against or on behalf of that
party in any manner s 316 CPEA
• That may be as a result of previous inconsistent
statements.
• S v DONGA & ANOR 1993 (2) ZLR 291 (SC) A
DISCREDITING A HOSTILE WITNESS
• There are essentially two ways of PP
discrediting a witness called by the state:
• a) he may apply to the court to have the
witness declared hostile
• b) he may confront the witness with a
previous inconsistent statement made by him.
• The hostility of the witness may be such that
the prosecutor wishes to effectively cancel out
that witness’s credibility. This is usually done
by cross examination.
• On the other hand, although the witness is
hostile his evidence may be vital and the only
way of coxing it out of him is by cross-
examination by the prosecutor, the witness
must be declared hostile by the court .
• In deciding whether a witness is hostile, the
magistrate will take into account all the factors
mentioned above including the fact that the
witness has made a previous inconsistent
statement.
• NB a prosecutor may not cross-examine his
own witness. He can only do so with leave
(permission) of the court upon the witness
being declared hostile.
• The prosecutor will then confront the witness with
details of where and when that statement was
made and whether the signature appearing on the
statement is his.
• If the witness confirms making the statement then
he is asked to reconcile the inconsistency between
that previous statement and his evidence in court.
• The statement should be produced in court as an
exhibit.
• If the witness denies making the statement,
the matter should be stood down and the
statement should be proved through other
witnesses (usually the police officers who
recorded the statement)
• It is often unnecessary to have the witness
declared hostile as the fact that has made a
previous inconsistent statement takes away
his credibility.
 Reliance on a hostile witness
• The fact that the witness is not wholly
consistent with his previous statement is not
necessarily a reason to disbelieve him. It may
be that parts of his evidence are satisfactory
while others are not.
• Even if a witness is impeached as being
hostile, this does not mean that his evidence
must be disregarded entirely.
 Reliance on a hostile witness cont’d
• S v MILLER 1971(1) RLR 159 at 160, Beadle CJ, said
“In a case where a witness has had his evidence
impeached because it is obvious that the witness is
favourably inclined towards the accused, it is quite
illogical to say that, because the witness is trying to
help the accused to the utmost extent, he must not be
believed when he gives evidence which does not help
the accused, but which ends to incriminate him…
there is no ground in law, therefore, for rejecting out
of hand those portions of the evidence… which do
implicate him”
 INSPECTION IN LOCO
• This simply means all the parties(including the
court, the prosecutor, the defence lawyer, the
accused and the relevant state witness proceeding
to the scene of the alleged crime with a view to
getting a better understanding of the layout,
features etc. of the scene and how the incident
may have unfolded.
• The Court can on its own initiative make the
decision to go for an inspection in loco or it can be
upon the application of either party
• Decisions on how and when the inspection in
loco is to be conducted lie with the court
• At the conclusion of the inspection in loco the
court the observations of the court and those
of the parties must be recorded and
subsequently incorporated into the main body
of evidence for consideration on the guilt of
the accused or otherwise at the conclusion of
the trial
 ACCUSED DISRUPTING PROCEEDINGS
S194(1) of CPE provides as follows:
Presence of accused
• (1) Every criminal trial shall take place and the witnesses
shall, except as is otherwise specifically provided by this
Act or any other enactment, give their evidence viva
voce in open court in the presence of the accused,
unless he so conducts himself as to render the
continuance of the proceedings in his presence
impracticable, in which event the court may order him to
be removed and direct that the trial proceed in his
absence.
 EXHIBITS
• These are physical objects or documents
presented in court to prove or rebut any fact
in issue.
• They include such things as weapons used in
the commission of the offence, stolen goods
which were subsequently recovered, doctors’
reports, photographs and plans.
• They must be properly introduced identified
and marked
APPLICATION FOR DISCHARGE AT CLOSE OF
STATE CASE S198(3) CPE
• S198(3) CPE provides as follows ”If at the close
of the case for the prosecution the court
considers that there is no evidence that the
accused committed the offence charged in the
indictment, summons or charge, or any other
offence of which he might be convicted
thereon, it shall return a verdict of not guilty”.
• The accused may therefore make an
application to be discharged at the close of
the state case (i.e. after the state has indicated
that they have closed their case and will not
be calling any further witnesses).
 THE TEST
• WHEN CONSIDERING DISCHARGE THE COURT
MUST CONSIDER WHETHER THE STATE HAS
MADE OUT A PRIMA FACIE CASE.
• “NO EVIDENCE” IN S198(3) HAS BEEN
INTERPRETED TO MEAN NO EVIDENCE UPON
WHICH A REASONABLE COURT ACTING
CAREFULLY MAY CONVICT
• SEE S v hartlebury & anor 1985(1) ZLR 1 (HC)
• Hartlebury contd
• The court elaborated on the application of this test.
• It said that a court may order discharge where
there in 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 rely on it or where there is no evidence to
prove an essential element of the offence.
• An application for discharge should be made
at the close of State case before the defence
case opens and there is no statutory provision
that mandates court to inform accused of his
right to ask for discharge.
• Section 198 (3) does not give the judicial
officer the discretion to discharge or not to
discharge an accused.
• If the court considers that there is no evidence
against the accused then it must discharge
him by returning a verdict of not guilty.
• Grounds upon which an application for
discharge can be made are provided for in Sec
198 (3) and have been further developed by
judicial decisions: see S v Kachipare 1998 (2)
ZLR 271
• An application for discharge can be made where:
• (1) there is no evidence to prove an essential
element of crime
• (2) where there is no evidence on which a
reasonable court acting carefully might properly
convict.
• (3) where evidence adduced on behalf of state is
so manifestly unreliable such that no reasonable
court would safely act on it.
 THE DEFENCE CASE
• If he has any witnesses, he will call each of
them in turn and evidence is sought in same
order.
• Where the accused is legally represented, the
legal practitioner will lead the accused
through his evidence in chief.
• He will also re-examine the accused.
 CLOSING ADDRESSES
• In terms of section 200 CPE both the
prosecutor and the accused or his legal
representative have the right to address the
court at the conclusion of the defence case.
• The prosecutor will address the court first and
then the accused or his lawyer will address.
• If the accused or his lawyer during the address
raise a point of law, the prosecutor then has
the right to reply to this point
 Separation of trials s190 CPEA
• When two or more persons are charged in the same indictment,
summons or charge, whether with the same offence or with different
offences
• The court may at any time during the trial
• On the application of the prosecutor or of any of the accused, direct
that the trial of the accused or any of them shall be held separately
from the trial of the other or others of them S v KACHIPARE 1998 (2)
ZLR 271 (SC)
• Because no application was moved by either party, the presiding judge
could not order a separation of the trial mero motu. For the discretion
so to order is pre- conditioned by s 190 upon the making of an
application.
• Court may abstain from giving a judgment as to any of such accused.
 VERDICTS
• The court will then consider and evaluate the
evidence and decide whether the state has
managed to prove its case beyond reasonable
doubt (Refer to the evidence module on this)
• The onus is on the state to prove its case against
the accused
 COMPETENT VERDICTS
• It might so happen that the evidence led in court
might not establish the commission of the offence
charged but a lesser one from those facts (i.e. a
competent verdict), the court may return a verdict
of guilty to such a competent verdict.
• To find out which competent verdicts are applicable
to a particular charge one refers to either the
criminal Law (codification and reform Act [Chapter
9:23] or under the particular Act creating that
particular offence
After considering and evaluating the evidence
the court may:
1. if the evidence so establishes, find the
accused GUILTY AS CHARGED.
2. find the accused NOT GUILTY AND
ACQUITTED
3. Return a COMPETENT VERDICT
• Example On a charge of murder the court may
return the following competent verdicts
- Infanticide
- Culpable homicide
- Assault
• PERMISSIBLE VERDICTS
• 273 Persons charged with crime may be found guilty
of unfinalised crime or assisting perpetrator of crime
A person charged with any crime may be found
guilty of (a) threatening, incitement, conspiracy or
attempting to commit that crime or any other crime
of which the person might be convicted on the
charge; or (b) assisting a perpetrator of that crime
or of any other crime of which the person might be
convicted on the charge; if such are the facts proved.
• 274 Conviction for crime other than that charged
• - 137 -
• Where a person is charged with a crime the
essential elements of which include the essential
elements of some other crime, he or she may be
found guilty of such other crime, if such are the
facts proved and if it is not proved that he or she
committed the crime charged
• S275 Verdicts permissible on particular charges Without
limiting section two hundred and seventy-three or two
hundred and seventy-four, a person charged with (a) a
crime specified in the first column of the Fourth Schedule;
or (b) threatening, incitement, conspiracy or attempting
to commit such a crime; or (c) assisting a perpetrator of
such a crime; may be found guilty of (i) a crime specified
opposite thereto in the second column of the Fourth
Schedule; or (ii) threatening, incitement, conspiracy or
attempting to commit such a crime; or (iii) assisting a
perpetrator of such a crime; if such are the facts proved.
 SENTENCING
• A sentence is a punishment that the court imposes
against the accused for the commission of the offence.
• Before imposing any sentence the accused the court is
required to have regard to the following:
• Accused’s record o previous convictions, if any
• Any relevant evidence or submissions in mitigation
• Any aggravating circumstances
• The prescribed sentencing provisions for the offence
 MITIGATION
• These are any relevant facts which tend to
lessen the severity of the punishment the
accused might otherwise have received and
may include any of the following:
• age and health
• educational background
• Remorsefulness
• family background and responsibilities
• Accused’s financial means
• Whether or not the accused is a first offender
• Whether accused has made good on the harm
he caused by paying compensation or
restitution etc
• The accused must always be afforded the
opportunity to lead evidence and to address
the court in mitigation of sentence: S v Milton
& others HH53-92
• The defence may choose to address the court
and setting out the salient mitigating facts
without leading evidence: S v FURISAYI 1981
ZLR 56 (A) at page 58
 AGGRAVATION
• Aggravating features are those that tend to
increase the severity of the sentence that the
court may impose
• The prosecutor may address the court to
highlight any aggravating features and may
make submissions regarding the appropriate
sentence the court may impose.
• In so doing he may cite any relevant case law
authorities
 AGGRAVATING FACTORS EXAMPLES
• Presence of previous convictions
• Position of trust such as employer and
employee
• Where the accused is related to the victim of
the crime
• Severity of the injury inflicted on the victim
• High value of the property stolen
• Prevalence of the offence
• The psychological impact of the offence on the
victim
• The age of the victim
• Where the property stolen was not recovered
• ETC
 SENTENCES
• We have already covered the jurisdiction of the courts
• PERMISSIBLE SENTENCES:
• Depending on the nature of the offence, and the specific
sentencing provisions applicable to that offence, a court
may impose any of the following sentences
1. A fine
2. A term of imprisonment
3. community service
4. The death sentence (can only be imposed by the High Court)
Corporal punishment no longer a competent verdict –See S v
Willard Chokuramba CC 10/19
 REASONS FOR SENTENCE
• The court sentencing a convicted person
should provide written reasons for the penalty
imposed and such reasons must be given
when the sentence is pronounced in court.
• It is often said that the correct approach in
sentencing is to take place in balance the triad
of factors, consisting of the following
• The personal circumstances of the accused
• The nature of the offence committed(including
its nature, its seriousness and the
circumstnces under wich it was committed
• The interests of society
• Mandatory minimum sentences
 FINES
• A fine is a pecuniary (monetary) penalty
wherein the accused is ordered to pay a
certain amount of money as his punishment
• - Fines must be tailored to the means of the
accused and where necessary accused must
be given time to pay or to pay in instalments: S
v Peti & others 1966 RLR 591
• S v Manwere 197 RLR 374
 DEATH SENTENCE
• Section 48(2) of the Constitution provides:
• A law may permit the death penalty to be imposed only on a
person convicted of murder committed in aggravating
circumstances, and. (a) the law must permit the court a
discretion whether or not to impose the penalty; (b) the penalty
may be carried out only in accordance with a final judgment of
a competent court; (c) the penalty must not be imposed on a
person-(i) who was less than twenty-one years old when the
offence was committed; or (ii) who is more than seventy years
old; (d) the penalty must not be imposed or carried out on a
woman; and (e) the person sentenced must have a right to seek
pardon or commutation of the penalty from the President.
 Sentence – COMMUNITY SERVICE
• This consists of the convicted person
performing unpaid work for the benefit of the
community in general as an alternative to
paying a fine or serving a term of
imprisonment.
• The accused is assigned to a specific public
institution such as a hospital, a school, an old
people’s home, an orphanage, a court etc
• The sentence of community service must
specify the number of hours that the offender
must work at the designated institution
• Community service is appropriate for
relatively minor offences and is not suitable
for serious offences such as rape, murder,
robbery etc
• A community service order may be imposed as
an alternative to a sentence of imprisonment,
or a fine
• It may also be imposed as a direct sentence
Post verdict and Post Sentence
remedies
 Scrutiny and Review
• Where a magistrate other than a regional magistrate
sentences a person to a period of 3 months in prison
but not exceeding 12 months or to a fine of more
than level 4 but not exceeding level 6 the clerk must
send such a record to a Regional magistrate for
scrutiny.
• Such a record must be sent to a Regional Magistrate
within 1 week after sentence has been imposed and a
magistrate who presided over the case has discretion
to send record alone or with additional remark.
 Scenarios where a record will not be sent
for scrutiny
• Where the accused person was represented
by legal practitioner.
• Where the accused person is a company.
• Where the accused person has requested that
the case should be sent to the high court for
review.
• Where the accused person has been fined in
absentia in terms of Sec 356 (1)
• A regional magistrate to whom a record has been
sent must consider it as soon as possible.
• Where a regional magistrate is satisfied that the
proceedings in the case are in accordance with real
and substantial justice he must endorse the record
with a certificate to that effect.
• If a scrutinizing magistrate has got any doubts
about the proceedings he must forward the papers
to a registrar of HC who will lay them before a
judge for review.
• NB: A regional magistrate has no power to alter
or correct the proceedings of a magistrate.
• AUTOMATIC REVIEW
• Where a magistrate including a regional
magistrate sentences a person to imprisonment
of more than 12months or to a fine of level 6 the
Clerk of court must send the record to the
Registrar of HC within 1 week after sentence was
imposed for review.
• Where an accused is aggrieved by a sentence that is
subject to automatic review he may deliver a statement
to clerk of curt within 3 days after sentence was passed
setting out his reasons for considering the sentence
excessive. This statement must be sent together with
record for review.
• NB: If accused was represented by a lawyer or is a
company such a record will not be sent for review unless
the lawyer or Company representative request the clerk
of Court in writing and with reasons within 3 days after
sentence was imposed to send the record for review.
• It is mainly to ensure that every case in which
a magistrate imposes a sentence more than
the limits prescribed in Sec 57 (1) of the Mag
Court Act, is examined by a judge of HC who
must satisfy himself that proceedings are in
accordance with real and substantive justice.
• It is a way of ensuring that unrepresented
accused are treated fairly.
 Review powers
• If a judge on review considers that the proceedings
of the magistrate are in accordance with real and
substantial justice he confirms the proceedings by
endorsing a certificate to that effect.
• However if the Judge does not consider the
proceedings to be in accordance with real and
substantial justice he may take any of the following
routes:
• (1) he may quash the conviction
• (2) he can alter the conviction to one which the
magistrate could and should have reached.
• (3) he can reduce or set aside sentence or order
made by magistrate.
• (4) he can correct or set aside proceed of the
magistrate or give whatsoever judgment or impose
whatever sentence magistrate should have given.
• (5) he can remit the case to the magistrate for trial
de novo.
 Appeals
• An appeal is concerned with the substantive
correctness of a decision based on the facts on
record or on law relevant to the facts.
• A review is primarily concerned with the
procedural validity of proceedings
 Time limits for noting an appeal
• An appeal has to be made by an accused
person within 10 days failure of which he has
to apply for condonation.
 Power of mercy by the President
• Section 112 of the constitution
• Grant a pardon to a person convicted of any offence against law.
• Grant a respite from the execution of sentence
• Substitute a less severe punishment for that imposed for any offence
• Suspend for a specified period or remit the whole or part of a
sentence for any offence or forfeiture imposed in relation to an
offence
• For a person convicted outside Zim the president may declare that
the conviction is not regarded as a conviction in Zimbabwe
• The Grant of pardon or respite must be published in the Gazette.