During a criminal trial, the State, through its witnesses, adduces evidence to link the accused person to the crime as per the charge before the accused’s placement to his defence. The evidence adduced by the state may link the accused to the crime as charged or to any other competent charge. After the State is done adducing evidence and cross-examination and re-examination is done, the State case will be closed. The next stage is the opening of the Defence case. However, the court will proceed to the next stage only when the State adduced evidence against the accused person that meet a certain threshold. In this article the writer is going to discuss the law applicable as far as discharge of the accused at the close of State case is concerned. 

The application for discharge at the close of the State case is provided for and governed by section 198(3) of the Criminal Procedure and Evidence Act (Chapter 9:07). This provision provides that 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 full import of this section has been judicially considered over the years. Briefly put, this provision makes it peremptory for the court to return a verdict of not guilty unless the evidence adduced by the State addresses all the essential elements of the crime or competent charge(s), if any. See S v Madzokere & Ors HH-37-14.

 The import of this provision is that the State must establish a prima facie case against the accused for the court to place the accused on his defence. “Prima facie” is a standard lower than proof beyond reasonable doubt. The next question is what is considered in deciding whether or not a prima facie case has been established. The question to be considered is whether or not at the close of the state case there is evidence upon which a reasonable court acting carefully might convict. If the answer to this question is in the affirmative then the accused person ought to be placed on his defence, otherwise, he must be acquitted. The establishment of a prima facie case is a condition precedent to placement of an accused person to his defence. The trial court is obliged to assess whether or not there is evidence amounting to a prima facie case warranting the placement of the accused to his defence. 

 In the case of S v Petronella Nyarugwe HH 42/16, it was held that;

“A prima facie case is a case where one can say there has been shown, on the evidence led, a probable cause to put the accused on his defence. Generally, probable cause or a prima facie case is made where all the essential elements of the offence charged or any other offence on which the accused may be convicted have been proved on a balance of probability. At this stage the test is not whether there is proof beyond reasonable doubt but whether on a balance of probabilities it can be argued that the essential elements constituting the offence charged or any other offence have been proved.”

In the case of S v Kachipare 1998 (2) ZLR 271(S), the court held that;

“So far as the law in Zimbabwe is concerned, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if at the close of the case for the prosecution, it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence….”

 In the case of S v Tsvangirai & Ors HH-119-03, it was held that;

“….where the court considers that there is no evidence that the accused committed the offence, it has no discretion but to acquit him. In particular the court shall discharge the accused at the close of the case for the prosecution where:-

1.     there is no evidence to prove an essential element of the offence – See Attorney-General v Bvuma & Another 1987 (2) ZLR 96 (S), 102;

2.     there is no evidence on which a reasonable court, acting carefully, might properly convict – See Attorney-General v Mzizi 1991 (2) ZLR 321, 323 B; and

3.     the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it – See Attorney-General v Tarwireyi 1997 (1) ZLR 575(S), 576.”

When considering whether or not to discharge the accused, the court must consider whether the state has made out a prima facie case against the accused person. It is significant to highlight that section 198(3) of Criminal Procedure and Evidence Act, unlike its precursor section 188(3) of Chapter 59, uses the word “shall” and not “may”, and this makes it a peremptory provision.

In the case of S v Mathebula & Anor 1997 (1) SACR 10 (W) at 34j-35d the court reasoned that;

“The duty to prove an accused’s guilt rests fairly and squarely on the shoulders of the State. As I said previously, the accused need not assist the State in any way in discharging this onus. If the State cannot prove any evidence against the accused at the end of the State’s case, why should the accused be detained any longer and not be afforded his constitutional rights of being regarded as innocent and thus being acquitted and accorded his freedom? Can it be said that he was given a fair trial if, at the close of the State’s case wherein no evidence was tendered to implicate him in the alleged crimes, the trial is then continued owing to the exercise of a discretion in the hope that some evidence implicating him might be forthcoming from the accused himself or his co-accused? To my mind, such a discretionary power to continue the trial would fly in the face of the accused’s right to freedom, his right to be presumed innocent and remain silent, not to testify and not to be a compellable witness. To my mind, it would constitute a gross unfairness to take into consideration possible future evidence which may or may not be tendered against the accused either by himself or by other co-accused and for that reason decide not to set him free after the State had failed to prove any evidence against him.”

 The effect of this position is that the State must prove a prima facie case, in other words, it must adduce sufficient evidence upon which a court acting carefully could convict, before an accused person could be called upon to protest his innocence. See S v Hartley & Anor 1985(1) ZLR 1(H). Once the State fails to discharge that onus, the decision in the Kachipare case makes it clear that the court is left with no discretion but to discharge.

 In Attorney-General v Bvuma & Another, the court held that;

“It is, in my opinion, not a judicious exercise of the court’s discretion to put an accused on his defence in order to bolster the State case — a case which, standing alone, cannot be proved. In this regard I prefer the approach of the English courts. In that approach an accused person is entitled to a discharge if there is no evidence against him or if that evidence does not prove some essential elements of the offence or the witnesses are discredited in cross-examination…”

 In short, the State must prove a prima facie case against the accused person first before the accused is put to his defence. If the evidence adduced falls short of the required threshold, the court has no discretion but to discharge. The court is obliged to assess whether the evidence adduced is sufficient to prove a prima facie case before proceeding with the Defence case.

 Aleck Chikoro is a Legal Practitioner, Conveyancer and Notary Public, practicing law in Harare, Zimbabwe. He writes in his personal capacity. He is contactable on: Whatsapp-+263 777 026 105; email-aleckchikoro@gmail.com; twitter-@aleckchikoro