State v Kenneth Kajokoto

The accused was charged with contravening s 52(2) of the Road Traffic Act [Chapter 13:11]. He was travelling north along Second Street when a cyclist entered the road and attempted to cross in front of him. The cyclist was struck by the accused's vehicle and fell on the tarmac, sustaining injuries from which he died on arrival at hospital. The vehicle did not stop after impact but veered to the right into oncoming traffic and collided with another cyclist who sustained serious injuries. The accused was alleged to have driven at excessive speed, failed to stop or act reasonably when collision seemed imminent, failed to keep proper lookout, sound horn, keep vehicle under control, and keep in correct lane after impact. The accused pleaded not guilty and outlined his defence. The prosecutor applied for admissions which was granted, then cross-examined the accused who made certain admissions, after which he was convicted without the State adducing any evidence.

• Whether the trial court properly applied s 314(2) of the Criminal Procedure and Evidence Act regarding admissions
• Whether the prosecutor was entitled to cross-examine the accused to obtain admissions in the absence of State evidence
• Whether the magistrate properly warned the unrepresented accused under s 314(3) that he was not obliged to make admissions
• Whether the State discharged its burden of proof after a not guilty plea was tendered
• Whether prejudice was caused by trying the accused separately for the death of one cyclist while considering it in sentencing for injuries to another

The conviction of the accused was quashed and the sentence set aside.

Where an accused pleads not guilty, the State must adduce evidence to establish guilt beyond reasonable doubt and cannot circumvent this burden by having the prosecutor cross-examine the accused to extract admissions. Under s 314(2) of the Criminal Procedure and Evidence Act, it is the duty of the presiding judicial officer, not the prosecutor, to seek admissions from an accused, and such admissions are only for purposes of clarifying facts in issue or obviating evidence on undisputed facts. A judicial officer must warn an unrepresented accused under s 314(3) that he is not obliged to make any admissions. Admissions obtained through improper prosecutorial questioning do not constitute an unequivocal admission of an offence and all its essential elements sufficient to sustain a conviction.

The court observed that trying the accused separately for the death of one cyclist while considering that death as an aggravating factor in sentencing for the charge relating to the other injured cyclist caused extreme prejudice to the accused, particularly as the charges arose from the same alleged negligent driving incident. The court noted that although the accused had not been tried for culpable homicide, the death was taken into account in determining sentence, and the prejudice to the accused was clearly obvious.

This case is significant in Zimbabwean criminal procedure (which shares common heritage with South African law) as it clarifies the proper application of provisions relating to admissions during trial. It establishes important safeguards for accused persons, particularly unrepresented accused, by emphasizing that: (1) the judicial officer, not the prosecutor, must seek admissions from the accused; (2) admissions are only for clarifying facts or obviating evidence on undisputed matters, not for enabling prosecution to cross-examine and extract confessions without adducing evidence; (3) mandatory warnings must be given to unrepresented accused about their right not to make admissions; and (4) where an accused pleads not guilty, the State bears the burden of adducing evidence to prove guilt. The case also highlights the prejudice that can arise from splitting charges arising from the same incident and considering uncharged conduct in sentencing.