This is a matter which came as an
unopposed matter in which the applicant sought to set aside the second
respondent's decision that the trial of the applicant continue to the defence
case in a criminal trial. Further, that the applicant be discharged at the
close of the State's case.
The brief background of the matter
is this.
On 11 September 2013, at around
16:30 hours, the applicant was in charge at a roadblock along Kirkman Road,
Mabelreign, Harare. The applicant was observed by the informant, one Fiona
Hlomani, a senior police officer who was checking roadblocks along Kirkman
Road. The informant observed the accused person receiving something from an
unidentified motorist. The informant then stopped and interrogated the
accused person as to what was happening. The accused is alleged to have
thrown down seven dollars she had received from the motorist. It is
alleged that the accused picked up the money and handed it over to Motion
Manekera, a commuter omnibus driver. The accused was searched by the
informant and was found with a road service permit belonging to Freerain Enterprises
of Number 7 Seville Close Glen Lorne.
It is from the above set of facts
that the applicant had a charge of criminal abuse of duty as a Public Officer
as defined in section 174(1)(9) of the Criminal Law Codification and Reform Act
[Chapter 9:23] laid against her.
Evidence was led from the arresting
detail who stated she observed the accused person being handed money by a
motorist who sped off. It was Fiona Hlomani's further evidence that the
accused person shouted “mandibata” (meaning you caught me) when the second
witness got to her. This was not disputed. The first witness refuted the applicant's
defence that the $7= was his. Further, the
applicant was found with excess money which she did not account for.
At the close of the State case the
defence applied for discharge.
The basis for the application was
that the State witnesses were not reliable as they had proffered contradictory
evidence. Our law provides for a discharge at the close of the State case
if the court considers that there is no evidence that the accused committed the
offence. Section 198 of the Criminal Procedure and Evidence Act [Cap 9:07]
reads:
“198 Conduct of Trial
(3) If at the close of the case
for the prosecution the court considers that there is no evidence that the accused
committed the offence charged in the indictment, summons or charge, or any
other offence of which he might be convicted thereon, it shall return a verdict
of not guilty.”
It is trite from the above that
discharge is justified;
(i) Where there is no evidence on
which a reasonable court might convict. See Rutterboldt 1956 SA 722 & Attorney General v Mzizi 1991 ZLR 321 (S)…,.
(ii) The evidence adduced by the
prosecution is so manifesty unreliable that no reasonable court could safely
act on it. See S v Hurtlebury & Anor 1985 1 ZLR 1…,
per McNALLY…,.; S v Malinger & Ors 1993 4 SA 479; S v Kachipone 1998 2 ZLR 271 (S).
(iii) There is no evidence to prove
an essential element of the offence. See S v Ruzani 1984
ZLR 334 (4) and Attorney General
v Bvuma & Anor 1987 (2) ZLR
96 (SC)…,.
The trial court has a discretion to
discharge or continue with the trial. However, the most important factor is
that the discretion must be exercised judiciously. It seems to me that the
magistrate judiciously exercised her discretion and this court will not
interfere with that discretion as a prima facie case was made against the
applicant.
In light of the above, the following
decision is made.
Application is dismissed.
