The procedure in a Criminal trial is governed by the Criminal Procedure and Evidence Act

[Chapter 09:07]. The plea of not guilty in a criminal trial warrants full trial procedure. In this essay
the writer is going to outline the criminal trial procedure where an accused has pleaded not guilty
upto verdict.

Stages in the Criminal Trial Procedure

1. The accused’s entering of plea

A plea is the accused’s answer to the charge. When the charge is put to the accused, he/she must
enter a plea immediately. The normal procedure is for the accused to plead personally, even where
he/she is represented by a legal practitioner. There are various pleas that may be tendered by an
accused person which are set out in section 180(2) of the Criminal Procedure and Evidence Act and
the common are ‘Guilty’ and ‘Not Guilty’.

Once the charge is read and understood by the accused person, he is obliged to enter into a plea.
The accused must make his plea freely and voluntarily and without having been influenced to so by
assaults or threats of violence. He must answer to the charge personally, and his legal representative
should not tender a plea on his behalf unless it is confirmed by the accused person as demonstrated
in the case of S v Nyandoro1. However, if the accused pleaded not guilty this will require a full trial
procedure.

2. Outline of the state case

After the pleadings and a plea of not guilty is entered, the State will read its outline of case in terms
of Section 188(a) the Criminal Procedure and Evidence Act [Chapter 09:07]. The prosecutor
addresses the court on the nature o the offense and material facets on which it is based. According
to Madhuku (2010), the recommended approach is to outline the evidence of each state witness
and setting out the ordering which the state proposes to lead its witnesses 2. In the magistrate court,
once the accused has pleaded not guilty, the prosecutor must make a statement outlining the nature
of his offence and the material facts on which he relies 3. These statements must be recorded as
outlined in the case of S v Nkomo, the statement should contain the evidence which the prosecutor
want to lead4.

1
S v Nyandoro 1987(2) ZLR66 (S)
2
L. Madhuku (2010) An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver Press
3
Section 188(a) of the Criminal Procedure and Evidence Act Chapter 9:07
4
S v Nkomo 1989 (3) ZLR 117
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3. Outline of defense
After the State outline the accused will then be requested to make a statement outlining the nature
of his defence and the material facts on which he relies on5. If at this stage, the defence fails to
mention any fact relevant to the defence which, in the circumstances existing at the time, it could
reasonably have been expected to have mentioned, the court may draw adverse inferences from this
failure and this may be treated as evidence corroborating any other evidence against him 6. The
statement of the accused person may be taken into account in deciding whether the accused is guilty
or not7. In the case of S v Mandwe, it was stated that, if the accused person diverges from the
statement he initially gave, adverse conclusions will be drawn8.

4. Evidence in chief
According to Madhuku (2010), evidence in chief involves the prosecutor leading evidence from
state witnesses and it is the prosecutor’s discretion to choose which witness to call to support the
state case9. In general witness is expected to adhere to statement they made to the police. If there are
material variations the prosecutor is obliged to disclose them to the court. This does not change the
legal position that statements made by a witness to the police are privileged. The witness must give
their evidence viva voce in open court and in the presence of the accused except in the presence of
the contrary10. The witness must give his or her evidence o oath, unless they are allowed to make an
affirmation or they are too young or ignorant to understand the nature of the oath or affirmation or
to recognize its religious obligation11.

If it happens that there are several counts the witness is to be called in an order that the counts are
set out in the charge. In addition to that were there are several counts the exhibit should be put in
following the order of counts in which they relate. More so were they are several counts and several
witnesses, the court should be told which count or counts each witness is giving evidence on. In the
case of S v Wise12, it is said that once the witness is giving evidence, it is improper for the
prosecutor to interview the witness privately for example during an adjournment without informing
the court before doing so and explaining to the court why it is necessary.
5
Section 188(a) of the Criminal Procedure and Evidence Act Chapter 9:07
6
Ibid see section 189(2)
7
Ibid See section 189(a)
8
S v Mandwe 1993 (2) ZLR 2339 (S) at 270-CD
9
L. Madhuku (2010) An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver Press
10
Ibid See section 194(1)
11
Ibid See section 249-251
12
S v Wise 1974(2) RLR 194(A)
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5. Cross examination
The purpose of cross examination is to extract from the witness that which may discredit his or her
evidence or otherwise reduce its value. This is normally done by questioning the witness. The
accused and his representative should put to each state witness as much of the defense case as
concerns that witness and inform that witness of other witness that contradict him. The witness
should be given a fair opportunity to explain the contradictions put to him. Failure to cross examine
the witness is, in general the acceptance of the witness evidence. Even in circumstances where the
accused is not represented, failure to cross examine the witness on material points will leads to
adverse inferences being drawn against the accused person.

In addition to the above the unrepresented accused person does not understand the purpose of cross
examination and are unskilled in its technique. In the case of S v Khambule13, it was said that it is
the duty of the judicial officer to assist the accused person who shows an insufficient understanding
of his right to cross examine the witness and the consequences of not exercising this right.
Generally the judicial officer must give the accused person or the representative enough time to
cross examine the state witness.

6. Re-examination
According to Madhuku (2010), re-examination involves the prosecutor putting questions to the
witness all in an effort to reinforce his or her evidence on points were the cross examination has
been watered it down14. The prosecutor has a task to re-examine the state witness to enable the state
witness to explain his answers to questions put to him during cross examination. The re-
examination must only deal with matters arising from the cross-examination. It cannot be used to
elicit evidence that was not raised during examination-in-chief.

7. Closing of the state case

After the prosecutor has finished leading evidence from the state witnesses, the state case is closed.
There are two things that can be done at the close of the state case, it’s either the case will proceed
to defense case or there will be application for discharge at the close of state case though it is
optional. If at the close of state case the court considers that there is no evidence that the accused

13
S v Khambule 1991(2) SACR 277(W)
14
L. Madhuku (2010) An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver Press
3|Page
committed the offence or any crime for which the accused might be convicted of the court must
pass a verdict of not guilty15.

There is a basis for ordering the discharge of the accused person where there is no evidence to
prove the essential elements of the crime, there is no evidence which a reasonable court, acting
carefully, mighty properly convict and if the evidence available is so manifestly unreliable that no
reasonable court could safely act on it16. The court has no discretion but rather it must discharge the
accused person as there is no any reasonable reason to continue with the trial.

However, if the court omits to discharge the accused in these circumstances, and the accused
subsequently gives evidence and incriminates himself, does that irregularity vitiate the proceedings?
In S v Kachipare17, the Supreme Court held that it would not do so. In Kachipare’s case the
appellant and a co-accused were jointly charged with the murder of a child. The appellant pleaded
not guilty, the co-accused guilty, but the trials were not separated because no application for
separation was made. On appeal it was argued that the trial court should have ordered the
appellant’s discharge at the close of the State case. The Supreme Court agreed with that
submission, but said that the trial court’s failure to do so was not such an irregularity that it resulted
in a substantial miscarriage of justice justifying the setting aside of the conviction in terms of
section 12(2) of the Supreme Court Act [Chapter 7:13].

In a case of S v Lubaxa, the South African Supreme Court of Appeal came to a different
conclusion, holding that failure to discharge an accused person at the close of the State case, where
there is no possibility of a conviction unless the accused gives evidence and incriminates himself, is
a breach of the accused’s constitutional right to a fair trial and ordinarily vitiates a conviction based
exclusively on his or her self-incriminatory evidence18. This view, with respect, is preferable to the
one expressed by our court in Kachipare’s case.

8. Defence case
According to Madhuku (2010), if the accused is not discharged at the close of the state case, he/she
must be brought forward on his/her defence19. It is mandatory for the accused himself/herself to be
questioned by the prosecutor and the court. This means that even where the accused chooses not to
15
Section 198(3) of the Criminal Procedure and Evidence Act Chapter 9.07
16
Reid Rowland, (1997) Criminal Procedure in Zimbabwe p. 16-33.
17
S v Kachipare 1998 (2) ZLR 271 (S)
18
S v Lubaxa 2001(1) SA1251 (SCA) at 1255D to 1257A
19
L. Madhuku (2010) An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver Press
4|Page
give evidence, he/she is still liable to be questioned. Adverse inferences may be drawn against the
accused where he/she refuses to answer questions. Normally, the accused must be the first witness
for the defence, although this may be varied by the court in exceptional cases. The defence case is
conducted in the same way as the prosecution case: evidence is led through witnesses who give
evidence-in-chief and are cross-examined and re-examined.

9. Close of the defence case

According to Madhuku (2010), after leading evidence from defence witnesses, the defence team
closes its case20.

10. Addresses by both sides

Each side is entitled to address the court summarizing its case and focusing on key issues. If the
court refuses to allow the accused to address it, the conviction may be set aside21.

11. Verdict
The verdict is either one of guilty or not guilty. A guilty verdict must only be returned if the court is
satisfied beyond reasonable doubt that the accused is guilty. It is common for charges to be
preferred in the alternative. If the evidence proves the accused guilty on both the main charge and
all the charges in the alternative, it is not permissible for the court to return a guilty verdict on the
main charge and the alternatives as well. Conviction can only be on one charge. The court must
choose the most appropriate charge on which to return the verdict of guilty. Conversely, if the
evidence proves the accused guilty of only one of the alternative charges, the court must ensure that
it returns a verdict of not guilty on those alternative charges not proven.
References

Acts
Criminal Procedure and Evidence Act Chapter 9.07.

Books
L. Madhuku (2010), An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver Press

Reid Rowland, (1997), Criminal Procedure in Zimbabwe p. 16-18.

20
L. Madhuku (2010) An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver Press
21
Reid Rowland (1997), Criminal Procedure in Zimbabwe p. 16-39.

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Case laws
S v Nkomo 1989 (3) ZLR 117

S v Mandwe 1993 (2) ZLR 2339 (S) at 270-CD

S v Nyandoro 1987(2) ZLR66 (S)

S v Wise 1974(2) RLR 194(A),

S v Khambule 1991(2) SACR 277(W)

S v Lubaxa 2001(1) SA1251 (SCA) at 1255D to 1257A

S v Kachipare 1998 (2) ZLR 271 (S)

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