ATTORNEY-GENERAL v BVUMA & ANOR 1987 (2) ZLR 96 (S)

Flynote

Appeal — Attorney-General's right of appeal against acquittal — acquittal at close of prosecution case — appeal limited to point of law not affecting finality of case.

Criminal procedure — discharge at end of prosecution case — State evidence showing no case to answer — improper to put accused on his defence so that his evidence may bolster up State case.

Headnote

The Attorney-General has no right of appeal, under s 69 of the Magistrates Court Act [Chapter 19], against the acquittal of the accused at the close of the State case. His only right of appeal in such a case is under s 188, subs (3) as read with subs (3a) of the Criminal Procedure and Evidence Act [Chapter 59] on a point of law not affecting the finality of the court's decision.

When s 69 of the Magistrates Court Act is read with s 11A of the Supreme Court Act, No. 28 of 1981, it is clear that it deals with a right of appeal after a completed trial where both the State and the defence cases have been closed and a judgement given on the whole case.

In an appeal by the Attorney-General "on a point of law or against the acquittal or quashing of conviction by any court or tribunal", the discretionary powers of the Supreme Court to substitute a verdict of guilt and either pass sentence itself or remit the case for sentence, in terms of s 11A(2)(c) of the Supreme Court Act, can only be exercised after a completed trial and cannot apply to the acquittal of the accused at the close of the State case when only the State evidence has been heard.

Where at the close of the evidence for the State there is no case for the accused to answer and application is made for his discharge, it is not a proper exercise of judicial discretion to put the accused on his defence so that his evidence may bolster up the State case.