S V MUKWAMBUWE 2014 (2) ZLR 115 (H)

Flynote

Criminal law — offences under Criminal Law Code — culpable homicide (s 11) — causation — applicable tests for — causal link between the conduct of the accused and its consequences — foreseeability — what amounts to

Criminal procedure — witness — calling of by court — when court should do so — should not call witnesses to build up case which prosecution has failed to establish

Evidence — dying declaration — requirements for admissibility of dying declaration as evidence

Headnote

For the purposes of s 254(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], the requirements for the admissibility of a dying declaration are that:

• the person who made the statement must be dead at the time of the trial; and
• the trial must be for the murder or culpable homicide of the dead person; and
• the statement must relate to the cause of the declarator's death; and
• at the time he made the statement, the declarant must have been dangerously ill and have been without hope of recovery; and
• the declarant must have been a competent witness.

In determining the question of causation for the purposes of s 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (culpable homicide), two tests apply. Firstly there must be a causal link between the conduct of the accused and the consequence. The question is whether but for the accused's conduct would the consequence have occurred. This is referred to as the causa sine qua non. Secondly, there is the question as to whether it was reasonably foreseeable that the accused's conduct would lead to that consequence. The causal link would not be broken by a new cause that supervened after the accused had engaged in the conduct, provided it was reasonably foreseeable that the subsequent event would occur after the accused's conduct.

Instead of leading viva voce evidence from its witnesses, the State chose to have its evidence formally admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. As a result, some contentious issues which went to the root of the case remained unanswered.

Held, that in terms of s 232 of the Act the court is empowered to call witnesses mero motu for the purpose of reaching a just decision. However, this power should be exercised sparingly. It is not the function of the court to build up a case which the prosecution has failed to establish. In a defended case, the court can only call a witness in exceptional circumstances, such as if there is a conflict in the evidence which can be resolved by a witness who has not been called. To call, mero motu, the State witnesses whose evidence was formally admitted would have been tantamount to building up the case which the State had failed to build.