Geoffrey Kelly McKinnon and Markham McKinnon v The State

The appellants were former farm owners who were convicted of contravening section 3(2)(b) read with section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] by remaining in occupation of Sussexdale Farm after it was gazetted in March 2002 and subsequently acquired through Constitutional Amendment No. 17 of 2005. The appellants did not hold an offer letter, permit, or lease in respect of the land and remained in occupation despite being served with notices to vacate by the relevant authorities. At trial, the appellants pleaded not guilty and gave a defence outline. However, when cross-examined by the State, they elected to exercise their constitutional right to remain silent under section 70(1)(i) of the Constitution and refused to answer questions, including whether they had lawful authority to remain on the land. The magistrate convicted them and ordered them to pay a fine and vacate the farm. The appellants appealed against conviction only.

• Whether the court a quo erred in finding that Sussexdale Farm had been gazetted in March 2002 and that such gazetting remained in force
• Whether the court erred by failing to consider the effect of the subsequent gazetting of the same farm in February 2005 on the charge
• Whether the quality of evidence led by the State was sufficient to sustain a conviction
• Whether the court a quo misdirected itself by effectively transferring the onus of proof to the appellants
• Whether adverse inferences can be drawn from an accused's exercise of the constitutional right to remain silent under section 70(1)(i) of the Constitution
• Whether the offence under section 3 of the Gazetted Lands (Consequential Provisions) Act requires proof of mens rea
• Whether an accused who gives a defence outline and cross-examines State witnesses can subsequently claim the right to remain silent during their own testimony

The appeal was dismissed in its entirety.

1. The constitutional right to remain silent under section 70(1)(i) of the Constitution means that adverse inferences cannot be drawn from an accused person's exercise of that right, as they are exercising a constitutionally enshrined right. 2. However, once an accused has elected to give a defence outline or put questions in cross-examination of State witnesses (either personally or through counsel), they have effectively waived their right to silence and cannot claim it mid-trial. If they do so, the court may invoke the rule on adverse inferences. 3. Section 199 of the Criminal Procedure and Evidence Act is consistent with the Constitution as it addresses usual inferences drawn in fact-finding and does not permit adverse inferences to be drawn solely from a refusal to testify based on constitutional rights. 4. The offence under section 3 of the Gazetted Lands (Consequential Provisions) Act is a strict liability offence that does not require proof of mens rea. The essential elements are: (a) a former farmer-owner; (b) has not ceased to occupy or use; (c) gazetted land; (d) without lawful authority (defined as an offer letter, permit, or land settlement lease). 5. There is a presumption that Acts of Parliament are validly passed, and the onus is on an accused to show that gazetting was not validly done.

The court raised but did not conclusively answer several broader questions about the tension between the right to remain silent and various provisions in the Criminal Procedure and Evidence Act that permit adverse inferences to be drawn, including: section 41A(7)(d) regarding refusal to answer police questions; sections 66(6), 67(2), and 189 regarding failure to mention relevant facts in a defence outline; section 198 regarding refusal to answer questions during trial; and section 258 regarding confessions that lead to discovery of evidence. The court noted these issues were not adequately debated and declined to offer answers, stating the appellants had not asked the court to answer these questions. The court observed that the right to remain silent is not an immutable procedural right and acknowledged the broader right to a fair trial encompasses substantive fairness beyond what might have been acceptable before the 2013 Constitution. The court also noted that constitutional rights should not be cut down by reading implicit restrictions into them to align with common law, citing S v Maseko and S v Zuma.

This case is significant in Zimbabwean jurisprudence for clarifying the relationship between the constitutional right to remain silent (section 70(1)(i) of the Constitution of Zimbabwe 2013) and the drawing of adverse inferences in criminal trials. It establishes that while adverse inferences cannot be drawn solely from exercising the right to remain silent, an accused who has already given a defence outline or cross-examined State witnesses has effectively waived that right and cannot claim it mid-trial. The case also confirms that the offence of unlawfully occupying gazetted land under the Gazetted Lands (Consequential Provisions) Act is a strict liability offence requiring no proof of mens rea, and that there is a presumption of validity for gazetting under Acts of Parliament. The judgment navigates the tension between constitutional rights and traditional rules of criminal procedure and evidence.