S v KACHIPARE 1998 (2) ZLR 271 (S)

Flynote

Criminal procedure — trial — discharge at end of State case — whether court may refuse discharge if it considers that inadequate State case may be bolstered by defence evidence — effect of failure to discharge - whether a fatal irregularity justifying setting aside of conviction

Criminal procedure — trial — multiple accused — separation of trials — may only be ordered on application of accused or prosecutor

Interpretation of statutes — meaning of words — statute dealing with procedure rather than substantive law — pragmatic or expedient interpretation used

Headnote

The appellant and a co-accused were jointly charged with the murder of a newly born child. The child was that of the co-accused. The co-accused pleaded guilty, but the appellant denied the charge. An application was made at the end of the State case for the discharge of the appellant. There was no evidence directly linking the appellant with the offence. The trial judge refused the application, relying on the fact that there was evidence placing her close to the events and that the question of the truth or falsity of the evidence could not be determined without hearing the appellant's version. At the end of the trial, the court having heard the evidence of both accused, the co-accused was convicted of contravening the Infanticide Act [Chapter 9:12]. The appellant was convicted of murder.

On appeal, it was argued that (a) the trial judge should have ordered a separation of trials; (b) putting the appellant on her defence at the close of the State case was an improper exercise of the court's discretion, in that it was designed to fill gaps in the State case; and (c) the trial court erred in accepting the evidence of the co-accused implicating the appellant.

Held, that because neither the prosecutor nor counsel for the appellant applied for a separation of trials, the judge could not order a separation mero motu. The power to order a separation is pre-conditioned by the making of an application.

Held, further (per GUBBAY CJ and SANDURA JA), that the wording of s 198 (3) of the Criminal Procedure and Evidence Act made it clear that where, at the end of the State case, there is no evidence upon which a reasonable court might convict, the court has no discretion: it must discharge the accused. The court may not exercise its discretion against the accused if it has reason to suppose that the inadequate State evidence might be bolstered by defence evidence. The evidence in this case was purely circumstantial and was not evidence upon which a reasonable man might draw the inference suggested by the State. The appellant should have been discharged at that stage of the trial.

Held, further, however, that once an accused person is put on his defence, albeit wrongly, and is ultimately convicted, the refusal to discharge the accused is not in itself a sustainable ground for appeal against the ultimate conviction. At the stage the appeal is heard, the court cannot close its eyes to the evidence lead on behalf of the accused or a co-accused which, taken in conjunction with the State evidence, proves the accused's guilt conclusively. The question which the appeal court must consider is whether, on the evidence and the findings of credibility (if any), unaffected by the irregularity, there is proof of guilt beyond a reasonable doubt. If the court does so consider - and the onus is on the State to satisfy it - there is no resultant miscarriage of justice and the irregularity will be ignored.

Held, further, that the wording of s 198(3) of the Criminal Procedure and Evidence Act, which provides that the court "shall" discharge the accused where there is no evidence on which a reasonable man might convict, should be amended so as to restore the discretion to the trial court as to whether to discharge.

Held, further, that the trial court's conclusion was justified on the facts.

Held, further (per McNALLY JA, dissenting in part) that there is no need to amend s 198(3). As the provision was one dealing with procedure rather than substantive law, it was preferable to avoid the strictly logical path in favour of a pragmatic or expedient interpretation. The wording of the provision - "no evidence that the accused committed the offence" - allowed the court to take into account all evidence before it, even if the evidence was not, in terms of the rules of evidence, admissible against the accused at that stage. In this case, there was evidence (albeit at that stage not admissible) against the appellant, in the form of the statement made by the co-accused.