S v CHIDHAKWA 2016 (2) ZLR 1 (H)

Flynote

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of Rights " c rights of accused person (s 70) " onus of accused person to show that confirmed statement was not made freely and voluntarily " whether accused person's constitutional rights violated thereby

Criminal procedure: " discharge at close of State case " no application by accused " court finding insufficient evidence to proceed must nevertheless discharge

Criminal procedure: " evidence " production of " extra-curial statement by accused " statement confirmed by magistrate " whether onus placed on accused to show such statement not freely made contravenes Constitution

Headnote

A charge of murder against the accused had been poorly investigated. The µ confession by the accused had been confirmed by a magistrate, but the accused claimed he had been tortured and feared further torture. Even though there had been no application made for discharge at the close of the State case, the court ruled that in such a case, where the matter had clearly been mishandled by the police and prosecutor and there was no evidence on which a conviction might be secured, the judge µ had an obligation to discharge the matter without putting the accused on his defence.

Quaere: whether s 256(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] violates the provisions of s 70(1)(a) of the Constitution (on the presumption of innocence) and s 70(1)(i) (the accused's right µ not to testify). The section requires that where an accused's statement has been confirmed by a court, it lies with the accused to prove that the statement was not made voluntarily.