S v NCUBE 2016 (2) ZLR 963 (S)

Flynote

Criminal procedure: " accomplice " warning to before gives evidence " such warning not required where accomplice has already been convicted

Evidence: " accomplice " caution to be observed " approach to be taken to " corroboration required before accomplice's evidence can be accepted

Headnote

The warning to an accomplice in terms of s 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] is primarily aimed at an accomplice witness who is yet to be tried and charged. The procedure to be adopted is that the prosecutor is required to advise the magistrate that the witness is an accomplice who is yet to be charged. In turn, the magistrate is required to warn the witness that he is required to give evidence and to answer any questions truthfully notwithstanding that the questions might tend to incriminate him. Failure to give such a warning to an accomplice who has already been convicted would not amount to a misdirection.

It is permissible, in terms of s 270 of the Criminal Procedure and Evidence Act, to convict on the single evidence of an accomplice, proved there is evidence aliunde of the commission of the offence.

The evidence of an accomplice should be treated with caution unless it is corroborated by evidence aliunde. An accomplice is a self-confessed criminal and various considerations may lead him to falsely implicate an accused person, such as a desire to shield a culprit, or the hope of clemency where he has not already been sentenced. Additionally, by reason of his inside knowledge he has a deceptive facility for a convincing description of the facts, his only fiction being the substitution of the accused for the real culprit. Having warned itself, by contrasting the evidence of the accomplice with that of the accused and viewing it against all the surrounding circumstances and the general probabilities of the case, the court must be satisfied beyond a reasonable doubt that the danger of false incrimination has been eliminated. It is not enough for the trial court to merely warn itself of the dangers of false incrimination and then to convict simply on its faith in the honesty of the accomplice witness, based on nothing more than his demeanour and the plausibility of his story. The best way to be satisfied that an accomplice is reliable is to find corroboration implicating the accused. The risk of accepting accomplice evidence would be reduced if the accused person was found to be a liar, or did not give evidence to contradict that of the accomplice. In the absence of those features the court could convict if, being aware of the danger, it was satisfied that it could rely on the evidence of the accomplice, because the merit of the accomplice, as against the accused as a witness, was beyond question.

The mere fact that there is evidence aliunde that the offence has been committed does not mean that the accomplice's evidence must not be approached with caution. The accomplice's evidence must be corroborated, but the corroborative evidence need not implicate the accused. It is sufficient that the accomplice's evidence be corroborated in a material respect.

Where there are imperfections in the evidence of an accomplice and there is no corroboration of his evidence implicating the accused, the question remains whether there are other features which reduce the danger of false incrimination and if there are, whether they reduce it to the point where there is no reasonable possibility that the accused has been falsely implicated. In considering whether the danger of false incrimination has been satisfactorily removed, the need that the other features should be strong and significant must, in each case, be related to the quality and character of the accomplice's evidence and the degree of its imperfections.