S v MAZHAMBE & ORS 1997 (2) ZLR 587 (H)

Flynote

Criminal procedure — witness — hostile — impeachment of

Evidence — witness — discrediting — hostile witness — what is — impeachment of hostile witness — procedure to be followed — effect of evidence of such witness

Headnote

If a witness for the prosecution at a criminal trial gives evidence that is inconsistent with his previous statement to the police, and the inconsistency is such as to damage the State case, the prosecutor must act in order to discredit the damaging testimony. There are two methods of so acting.

The witness may be confronted with his previous inconsistent statement. The judicial officer must be informed of the departure. Sufficient particulars must be put to the witness to designate the occasion when the statement is alleged to have been made. Thereafter, if the witness denies making the statement, the prosecutor may prove that it was made. This he may do by calling the person who recorded it and, where necessary, the person who interpreted it. The witness must then be asked which statement is true and to explain why the previous statement was made.

Proving a previous inconsistent statement does not make evidence out of the statement. If the witness admits the truth of it, the court may act on the oral evidence, but not on the statement itself. Conversely, the fact that the witness has had his evidence impeached by the production of a previous inconsistent statement does not necessarily mean that his adverse evidence must be rejected. The court must examine the evidence and decide whether or not to accept it.

Declaring a witness to be hostile is a further or alternative step, which allows the witness to be cross-examined by the party who called him. A witness may not be cross-examined unless the judicial officer is of the opinion that he is hostile. The mere fact that the witness has given evidence which is unexpected does not make him "hostile", nor does the fact that he has previously made an inconsistent statement. A witness may be declared to be hostile if he is shown to bear a hostile animus towards the party who calls him and shows unwillingness to speak the truth at the behest of the party who called him and an intention to damage that party's case. The effect of declaring the witness hostile is that his adverse evidence is effectively neutralised as evidence led by the party against itself; but it is not ipso facto to be disregarded. The evidence given, both under cross-examination by the party calling him and otherwise, may be considered and accepted or rejected on whole or in part, depending on the weight to be attached to it.