The Attorney General v David Phiri

The respondent, David Phiri, appeared before a Victoria Falls magistrate facing 833 counts comprising 32 counts of violating the Exchange Control Act and Exchange Control Regulations, 72 counts of fraud, and 727 counts of theft. During trial, the state withdrew 56 counts. At the close of the state case, the respondent was acquitted of 32 counts of fraud under Exchange Control legislation and 2 counts of fraud. The respondent was also acquitted of 406 charges following withdrawal after plea by the prosecutor. The respondent was put on his defence on 337 charges, and at the close of trial was acquitted of these charges as well. The Attorney General applied for leave to appeal against the acquittals under section 198(4) of the Criminal Procedure and Evidence Act.

• Whether the application for leave to appeal under section 198(4) of the Criminal Procedure and Evidence Act could extend to charges withdrawn by the prosecutor after plea
• Whether there was a reasonable prospect of success on appeal
• Whether it was competent for the trial court to put the respondent on his defence on some charges while discharging him on others based on the same witness's testimony
• Whether the trial magistrate correctly applied the test for acquittal at close of state case based on manifestly unreliable evidence
• Whether the credibility of the state's star witness was so utterly destroyed that no part of his material evidence could be believed

The application for leave to appeal was granted in respect of 34 charges only (32 counts under Exchange Control Regulations and 2 counts of fraud). Leave to appeal was refused in respect of the other charges where acquittal resulted from withdrawal by the prosecutor.

1. Section 198(4) of the Criminal Procedure and Evidence Act does not cover cases where the prosecutor has withdrawn charges after plea, as the court is bound to discharge the accused in such instances. 2. A trial court cannot treat evidence of a witness in a piecemeal fashion by acquitting an accused at close of state case on certain charges based on the witness being manifestly unreliable, while simultaneously placing the accused on his defence on other charges based on the same witness's testimony. 3. The test for acquittal based on manifestly unreliable evidence applies only in exceptional cases where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed. If a court acts on part of a witness's material evidence, it demonstrates that the witness's credibility has not been so completely destroyed as to warrant discharge at close of state case on other charges based on the same witness's evidence.

The court observed that ideally, full written reasons for a ruling at close of state case should be given before the court considers the evidence of the accused on outstanding charges, rather than being incorporated into the final judgment delivered at the close of the defendant's case. The court also noted that before granting leave to appeal, it is necessary to show a reasonable prospect of success on appeal, and it is not enough to make out a reasonably arguable case. The appeal court should be protected from the burden of dealing with appeals in which there is no prospect of success.

This case is significant in Zimbabwean criminal procedure for clarifying the scope of section 198(4) of the Criminal Procedure and Evidence Act regarding applications for leave to appeal by the Attorney General. It establishes that such applications cannot extend to charges withdrawn by the prosecutor after plea. The case also provides important guidance on the test for discharge at close of state case based on manifestly unreliable evidence, emphasizing that this test must be applied cautiously and consistently. The judgment reinforces that a court cannot treat a witness's evidence in a piecemeal fashion - either the witness's credibility is so utterly destroyed that no part of material evidence can be believed, or the witness retains sufficient credibility to warrant putting the accused on his defence. The case demonstrates the standard for determining reasonable prospects of success in applications for leave to appeal.