APPLICATION FOR DISCHARGE AT THE CLOSE OF STATE CASE, an article intended to assist unrepresented persons in Criminal Trials, by Ashton Mufari, Associate, Muhonde Attorneys.

At the close of the State case, and where evidence led is not sufficient to prove an element of a crime upon which the accused is charged, an accused person is entitled to an acquittal by the court. In other words, this simply means that the court should on its own, enter a verdict of not guilty and an accused person is entitled to go. In cases where an accused person is not represented by a legal practitioner, the Court should own its own, enter a verdict of not guilty if it feels that the evidence adduced by the state is not sufficient enough to prove the essential elements of a crime. However, where an accused person is represented by a legal practitioner, and an application for discharge has not been made, the courts are, more  often than not, reluctant to enter a verdict of not guilty at the close of state case because an accused person is represented. Courts take it that the legal representative is the one in control of the defense case because of his or her expertise. This article is intended to advise unrepresented accused persons in cases where the state has finished leading its evidence and the accused feels that the evidence led by the state is not sufficient enough to prove the essential elements of a crime such as an act or negligence in some cases.

Where the state has closed its case and an accused person feels that the evidence led by the state is not sufficient, and where a court has not entered a plea of not guilty, an accused person, whether represented or not, (in represented matters, the Legal Practitioner is the one who indicates) an accused or his representative should indicate that he or she intends to apply for discharge of accused at the close of state case. Courts grant this request and in most cases, the court may direct that the application be done in writing.

THE LAW

  1. In terms of the Section 198 (3) of the Criminal Procedure and Evidence Act (Chapter 9:07) (The Act), the court shall return a verdict of not guilty at the close of the State case if;

         “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…”

  1. The interpretation of Section 198 (3) of the Act has been considered in several cases. The relevant position may be summarized as follows as per the Supreme Court of Zimbabwe in S v Kachipare 1998 (2) ZLR 271 (S) at 275, wherein it was 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 adequate evidence adduced by the state might be supplemented by the defence evidence…”

In other words where the court considers that there is no evidence that the accused committed the offence it has no discretion but to acquit him.

  1. Further, the court shall discharge the accused at the close of the state case if:                                                              There is no evidence to prove an essential element of the offence.

Attorney-General Bvuma & Another 1987 (2) ZLR 96(S) at p. 102

There is no evidence on which a reasonable court, acting carefully might properly convict the accused;

Attorney-General v Mziza 1991 (2) ZLR 32 at page 323 B

The evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely act on it.

Attorney-General v Tagwireyi 1997 (1) ZLR 575 (S) at pg 576.

The above principles were cited with approval and confirmed by the High Court of Zimbabwe in the case of S v Kuruneri and S v Tsvangirai & Others.

 

Conclusion:

What is required of the accused in making such an application is to prove to the court that the State has failed to adduce evidence favourable to it from its own witnesses and that opening the accused’s case (leading evidence from the accused’s side) will mean that the state is seeking to rely on cross-examining the accused person on his own defence.

An accused is also required to show that in the given circumstances, the law is very clear if regard is to be had to the evidence at hand, he is entitled to an acquittal at the close of the State case because the State has failed to lead evidence that prove the essential elements of the offence as contained in the state papers.

Accused should also show that  there is no evidence on which a reasonable court acting carefully might properly convict the accused of the offence charged nor any other offence which may competently arise from such offence. He should then conclude by saying that the only proper thing which the court can do in the circumstances is to discharge the accused person at that juncture. Subsection 3 of section 198 of the said Act is very clear to the effect that the court shall and not may return a verdict of not guilty.

An accused will then close the application by praying that he be discharged and found not guilty and therefore acquitted at the end of the State case.

 

Article written by Ashton Mufari, Associate, Muhonde Atttorneys.

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