The State v Fannuel Mpofu

The accused, Fannuel Mpofu, was charged with attempted murder in the Gokwe Regional Court. During the trial, it emerged that the trial prosecutor was closely related to both the complainant and the accused - the complainant and accused were brothers (their fathers were brothers), and the prosecutor's late sister had been married to another brother of the complainant and accused's father. The accused lodged a complaint alleging that the prosecutor was partisan to the complainant, had discussed the matter with the complainant, and had instructed police to record statements from persons who did not witness the alleged assault but were closely related to the complainant and had been coached on what to say. The accused maintained he acted in self-defence. The prosecutor had not disclosed this relationship to the court at the commencement of proceedings and only acknowledged it after the accused raised the complaint at an advanced stage of the trial.

• Whether the undisclosed relationship between the trial prosecutor and the parties violated the accused's right to a fair trial
• Whether the prosecutor's failure to disclose the relationship at the commencement of proceedings constituted a breach of prosecutorial duty
• Whether the proceedings should be quashed and a trial de novo ordered

The uncompleted criminal proceedings in CRB 19/07 were quashed and an order for trial de novo before a different magistrate was made.

A prosecutor has a duty to disclose to the court at the commencement of proceedings any close relationship with the parties before the court. A prosecutor must be impartial and fair, and like 'Caesar's wife' must be above any trace of suspicion. Where a prosecutor fails to disclose a close familial relationship with both the complainant and the accused, and where there is a reasonable apprehension that the prosecutor's handling of the matter (both pre-trial and during trial) may have favoured one party, the accused's right to a fair trial is violated and the proceedings must be quashed with an order for trial de novo before a different magistrate.

The court noted approvingly the principle from R v Banks (1916) 2 KB 621 that a prosecutor is a 'Minister of truth' who has the special duty to see that the truth emerges in court. The court also observed that it would have been helpful if the prosecutor had brought the relationship to the court's attention from the onset so that the court could have elicited the attitude of the parties on whether they had any objections to his involvement. The court sympathetically acknowledged that the accused, as a lay person and stranger to the courts, found it difficult to raise the complaint at the commencement of the trial because the person he had a complaint against was both the trial prosecutor and his uncle.

This case is significant in Zimbabwean criminal procedure as it reinforces the fundamental principle that prosecutors must be impartial and above suspicion, and emphasizes the mandatory duty of prosecutors to disclose any relationships or conflicts of interest that may give rise to a reasonable apprehension of bias. The case demonstrates the court's vigilance in protecting an accused person's constitutional right to a fair trial, and establishes that failure to disclose material relationships at the commencement of proceedings can result in the quashing of the entire trial, even at an advanced stage. It serves as an important reminder to prosecutors of their ethical duties and the consequences of failing to observe them.