S v MUZIVIRWA & ORS 1998 (2) ZLR 483 (H)

Flynote

Criminal procedure — prosecutor — concessions by — accused advancing improbable facts — prosecutor's duty to query such facts, not accept them without explanation — court not bound by such concession in absence of explanation

Headnote

The technique of plea bargaining is not part of our legal system. The prosecutor is required to prove his case in accordance with his evidence. He must not make concessions which are contrary to the evidence in order to obtain a plea from the accused or to lighten his work load. If the accused advances improbable facts, and the prosecutor has evidence with which to refute those facts, he must lead such evidence. Even if he does not have direct evidence, he is expected by presentation, cross-examination and argument, to assist the court to the proper finding in relation to these improbable facts. On the other hand, if the prosecutor has reason to believe that a defence, although improbable, may be true, it is proper for him to make a concession in favour of the defence. In a case in which the accused advances improbable facts and the prosecutor does not dispute those facts or makes what appears to be an unjustified concession about those facts, the magistrate is not obliged to accept the improbable facts or to accept the concession made by the State. However, in such a situation the magistrate must make clear to the parties the difficulty he is having in accepting the undisputed or agreed facts so that the accused will then have an opportunity to give evidence to establish those facts. The magistrate can thus require substantiation of implausible assertions of fact by the defence which are not challenged by the State. He may also consider whether concessions made by the State are properly made and he is not bound slavishly to accept such concessions. In exercising these powers he must, of course, ensure that he remains even-handed. He must show that he is impartially committed to justice and truth and not give the impression of intervening to rectify a defective or badly-presented State case.

In the present case, the magistrate should have queried improbable facts advanced by the accused and conceded by the State. The prosecutor would then have had an opportunity to indicate whether or not he had evidence or information tending to confirm the improbable scenario. If he did, then that would have removed any doubt about the propriety of his concession. In addition, the court should have probed an innocent explanation by the accused as this was in contradiction to unequivocal admissions they had made earlier in confirmation of their pleas.