S v CHIKUKWA 2016 (2) ZLR 434 (H)

Flynote

Criminal procedure: " charge " splitting of " rationale for rule against " extent to which rule has been diluted by s 145 of Criminal Procedure C and Evidence Act [Chapter 9:07]

Headnote

Section 145 of the Criminal Procedure & Evidence Act [Chapter 9:07] provides for what may be done when it is not clear which of several offences can be constituted by the facts proved. In that event, the accused may be charged with having committed all or any of those offences, and any number of such charges may be tried at one time; or the accused may be charged in the alternative with having committed some or one of those offences. The section has largely diluted the scope of the exception which an accused can take based on an alleged splitting of charges. It allows great latitude to the State to charge various offences, whether separately or in the alternative, arising from one act or series of acts or where facts are uncertain as to what charge exactly to put to the accused in the indictment. The objection to a splitting of charges may well have become academic in view of the provisions of the section.

One of the reasons for the rule against splitting of charges is that the rule is intended to protect the accused from being unduly prejudiced due to a multiplicity of convictions arising from one continuous conduct, in that the accused would then have to be sentenced on each charge. This can be cured by taking the counts as one for sentence.

The test for determining if there has been a splitting of charges is not a rule of law but of logic and common sense. The facts of each case must be considered on their merits in order to achieve fairness towards the accused. The application of the practice and tests should not lead to fettering the authority of the Prosecutor General to bring to court against the accused the charges which, on the evidence available, the accused should answer to.