S v MOYO 2016 (2) ZLR 65 (H)

Flynote

Criminal procedure: " trial " High Court trial " documents supplied to accused person before trial " list of witnesses and summary of witnesses' evidence " what such list and summary should contain " not permissible for State simply to summarise all the State evidence

Headnote

In preparing the summary of the State case in High Court prosecutions, the State should be guided by the provisions of s 66(6) of the Criminal Procedure and Evidence Act [Chapter 9:07]. In terms of this provision, the State is required to prepare a document to be served upon the accused together with the indictment or charge and a notice of trial. The document should contain a list of witnesses and a summary of the evidence of each such witness which he or she will give at the trial.

The content of the summarized evidence should be sufficient to inform the ^—accused of all the material facts upon which the State will rely. The accused is required to give an outline of his or her defence and to also list the witnesses he or she propose to call and to outline the evidence of each such witness in sufficient detail to inform the Prosecutor-General of all the material facts relied upon in his or her defence.

The State has adopted a practice of considering the statements of its witnesses and other evidence and then making a summary what it alleges as having taken place. Such a summary or State's conclusions is not provided for in the law and is of no evidential value. The summary may also have the effect of misdirecting the court on what the case is about.

If the prosecutor wants to address the court before leading evidence, he or she should do so before opening the State case, as provided for in s 198(1) of the Act. Whether such opening address is made in writing or verbally does not matter. The address or summary should not be included as part of the document which is referred to in s 66(6)(a), which document has come to be colloquially referred to as the State Outline or summary of State case. A distinction in procedure should be noted between trials in the magistrates court and the procedure in the High Court. In the magistrates court, where a plea of not guilty is entered, where in terms of s 188 of the Act, the prosecutor is required in terms of s 188 of the Act to make a statement outlining the nature of the State case and the material facts on which he relies.