S v MOYO

HIGH COURT, HARARE

[Criminal Trial HH 528-16]

July 11, 2016

CHITAPI J

Criminal procedure - Trial at High Court - Summary of State case - What constitutes - Improper for the prosecution to synthesise what it alleges took place - Prosecution required to prepare a summary of the evidence each witness will give at trial.

In prosecutions at the High Court, s 66 (6) of the Criminal Procedure and Evidence Act [Chapter 9:07] requires that the prosecutor prepare a summary of the material evidence of each witness he intends to call at the trial. It is improper for the prosecutor to merely give a synthesis of what he or she alleges occurred and in doing so include prejudicial statements in the summary of the State case in circumstances where the prosecutor knows that no witness will be called to testify to such evidence.

Case cited:

S v Chitsungo & Anor HH 9-17 (unreported), followed

Legislation considered:

Criminal Procedure and Evidence Act [Chapter 9:07], ss 66 (6), 66 (6)(a), 188, 198 (1)

A Muzini, for the State

AR Chizikani, for the accused

CHITAPI J:

The accused is charged with the murder of Keniard Doro. The indictment charges that on 20 January 2015 and at Hereford Farm Centenary, the accused acting with an intent to kill or realising the real risk or possibility that his actions may result in death, struck the deceased several times all over his body with a knobkerrie thereby inflicting injuries from which the deceased succumbed to his death.5

Mr Chizikani applied that some portions being lines 3 to 15 of the summary of the State case should be expunged from the record. He had filed written notice of application to strike out the offensive contents on 7 June 2016. His argument was based on the fact that the contents of the lines were prejudicial to the accused as they purported to detail what the accused allegedly did and yet there was no indication from a reading of the summary of State witnesses that any witness was going to lead such prejudicial evidence. The application was not opposed by the State and the lines complained of were deleted from the State summary.

This is not the first time that this Court has admonished the prosecution on how to prepare the so-called summary of State case. The court will repeat its directive and also refer to its pronouncements in the case S v Chitsungo & Anor HH 9-17 (unreported). 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 the said section, 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/she will give at the trial.

The content of the summarised 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 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 practice which the State has adopted is to consider the statements of its witnesses and other evidence. The State then outlines in summary what it alleges as having taken place. Such a summary or State's conclusions is not only not provided for in the procedural law of conducting trials in the High Court but is of no evidential value. The summary may also have the effect of misdirecting the court on what the case is about. Many a time evidence when led in court will vary with the States' summary. The State should therefore comply with s 66 (6)(a) of the Criminal Procedure and Evidence Act. In this case had the State strictly complied with the provisions of s 66 (6)(a), the application to strike out portions of the summary which summary should not be included in the document referred to in s 66 (6)(a) would not have been necessary. If the State wants to address the court before leading evidence, the State should do so before opening the State case as provided for in s 198 (1) of the Criminal Procedure and Evidence 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) as aforesaid 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 magistrate's court where in terms of s 188 of the Criminal Procedure and Evidence Act, the prosecutor is required to make a statement outlining the nature of the State case and the material facts on which he relies and the procedure in the High Court.

National Prosecuting Authority, State's legal practitioners

AR Chizikani Legal Practitioners, accused's legal practitioners