Chenjerayi Hunzvi v The State

The applicant was indicted for trial in the High Court on four counts of fraud arising from allegations that he had forged medical reports on diverse occasions, causing prejudice to the War Victims Compensation Fund in the amount of $517,537.72. He pleaded not guilty to all charges. At the close of the prosecution's case, defence counsel applied for discharge on all counts, arguing that the evidence of the State's witness, Mr R Blackmore (a questioned document examiner), had been so discredited that no reasonable court could safely convict on it. The trial judge dismissed the application, holding that apart from Blackmore's testimony, there was other evidence, including circumstantial evidence, upon which a reasonable court acting carefully might properly convict. The defence was invited to present its case. Defence counsel then applied to the trial judge for leave to appeal this ruling, which was refused on the ground that no right of appeal lies against a decision refusing to discharge an accused at the close of the prosecution's case. The applicant then sought leave from a judge of the Supreme Court to appeal against what was claimed to be the interlocutory judgment of the High Court.

• Whether there is a right of appeal against a High Court's refusal to discharge an accused person at the close of the prosecution's case
• Whether s 44(5)(a) of the High Court Act permits an accused to seek leave to appeal against a refusal to discharge
• Whether the trial judge's decision refusing discharge was an appealable interlocutory judgment
• The proper interpretation of s 198(3) and s 198(4) of the Criminal Procedure and Evidence Act in relation to appealability

The application for leave to appeal was dismissed.

An accused person has no right of appeal against a High Court's refusal to discharge him at the close of the prosecution's case. Section 198(4)(a) of the Criminal Procedure and Evidence Act grants only the Attorney-General (not the accused) the right to appeal, with leave, against a discharge at the close of the prosecution's case. The specific mention of the Attorney-General in this provision, applying the maxim expressio unius est exclusio alteris, excludes the accused from such appeals. At the stage of refusal to discharge, the trial is still ongoing and has not reached final determination. An accused retains the right under s 44(2)(a) of the High Court Act to appeal as of right after conviction on any ground involving a question of law, which includes challenging the refusal to discharge. Therefore, s 44(5)(a) of the High Court Act (permitting leave to appeal against interlocutory judgments) does not apply where there is no underlying right of appeal.

The Court observed that after final determination of the trial, the Attorney-General (with leave) and the accused (as of right) may appeal against the decision of the trial court which either discharged or refused to discharge the accused at the close of the prosecution's case. However, insofar as the accused is concerned, an appeal on the ground of wrongful refusal to discharge will only succeed if it is found that at the close of the prosecution's case evidence justifying a conviction was absent and the defence case furnished no proof of guilt. The Court also noted that the passage from S v Kachipare 1998 (2) ZLR 271 (S) regarding the absence of an accused's right to appeal against refusal to discharge was concurred in by Sandura JA, and that McNally JA, though reaching a different conclusion on the interpretation of s 198(3), did not disagree with this obiter dictum.

This case is significant in Zimbabwean criminal procedure law (which shares similarities with South African criminal procedure) as it authoritatively establishes that an accused person has no right to appeal against a High Court's refusal to discharge him at the close of the prosecution's case. The judgment clarifies the legislative scheme governing appeals in criminal trials, distinguishing between interlocutory decisions (which are generally not appealable by the accused during trial) and final determinations (which are appealable as of right on questions of law). It reinforces the principle that the proper time for an accused to challenge a refusal to discharge is after conviction, when appealing the final judgment. The case demonstrates the application of statutory interpretation principles, particularly the expressio unius maxim, in determining the scope of appellate rights in criminal proceedings.