S v WAIROSI (1) 2011 (1) ZLR 145 (H)

Flynote

Criminal procedure — trial — outline of State case — discrepancies between State outline and witness's evidence — need for discrepancy to be explained

Evidence — vulnerable witness — appointment of intermediary or support person — need for court to consider possible effect of appointment on D mind of vulnerable witness

Headnote

Any serious difference between the State's outline and a complainant's or witness's evidence during the trial cannot be held against the complainant or the witness, as they do not take part in the preparation of the State's outline. The difference must, however, be satisfactorily explained, as it will be fatal to the State's case if it remains unexplained when the State closes its case. The reason for drawing an adverse conclusion is that, because of the conflict between the two, a doubt is raised as to whether the State witnesses are being truthful. Such a conflict may easily be explained by the production of the witness's statement to the police. But if this is not done, so long as that conflict is unresolved at the end of the hearing, the benefit of the doubt must be accorded to the accused; for it would not be possible to say that the State has proved the case which it undertook from the onset to prove, and has therefore proved its case beyond a reasonable doubt.

♧ The intention of s 319H of the Criminal Procedure and Evidence Act [Chapter 9:07] is to guard against the effect which the appointment of an intermediary or support person will have on a vulnerable witness's evidence, in the sense that, in the case of the appointment of an intermediary, the questions are put in the manner deemed appropriate by the intermediary. Taking out the sting from the questions may bring out answers not consistent with the question asked. If that happens, the prosecutor or defence counsel should point that out, or ask the question in a different manner. The section is also meant to allow the court to assess the effect of the appointment of an intermediary or support person on the mind of the vulnerable witness and the resultant effect of that frame of mind on the witness's evidence. The appointment of a support person does not, in terms of s 319H(3), include the receiving and answering of questions through the support person, but merely the rendering of moral support. The court should also consider the effect which the appointment will have on the mind and subsequent conduct of the vulnerable witness. In the case of the appointment of an intermediary, and the use of a separate room, the witness could, due to the relaxed atmosphere from which he will be testifying, lose the effect of the oath or admonition to tell the truth, and drift away into the world of play, losing the need to tell the truth.