S v TSVANGIRAI & ORS 2003 (2) ZLR 88 (H)

Flynote

Criminal law — common law crimes — high treason — sufficiency ofevidence — number of witnesses required

Criminal procedure — discharge at close of State case — when may be granted — State evidence utterly unreliable — rarity of cases where such a finding could be made

Headnote

It is not competent for a court to convict a person of high treason except onthe evidence of two witnesses for each "overt act" charged or, where two or more overt acts are charged, one witness for each overt act. There would be no compliance with s 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] if, in a case where more than one overt act is charged and there is only one witness, the same witness were to give evidence on each of the overt acts. Where one overt act is charged at least two witnesses must give evidence on the overt act, although the evidence need not overlap. Where the court is relying on the evidence of only two witnesses to prove the whole overt act, the evidence of each of those witnesses must be such that, standing alone, it would, if believed, be adequate to establish that the accused committed the overt act of treason with which he is charged.

An "overt act" is any act manifesting the criminal intention and tending towards the accomplishment of the criminal object. It is generally a composite thing, passing through distinct stages and made up of various circumstances. Several witnesses speaking to those different stages and circumstances may be necessary.

In terms of s 198(3) of the Criminal Procedure and Evidence Act, the court shall return a verdict of not guilty if at the close of the State case the court considers that there is no evidence that the accused committed the offence charged (or any other offence with which he could be convicted on that charge). Thus, the court must discharge the accused at the close of the case for the prosecution where (a) there is no evidence to prove an essential element of the offence; (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; (c) the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. Instances of the last such cases will be rare; it would only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed.