The State v Wairo Wairo

On 23 December 2023 at around 2100 hours at Damofalls Phase 4, the accused allegedly assaulted David Sengai (the deceased) several times all over his body with clenched fists and open hands, causing injuries from which the deceased died. The post-mortem report showed the deceased's death was due to universal subarachnoid haemorrhage, skull and vault fracture and severe cranioencephalic injuries. The State called three witnesses: Noleen Goro (who testified that she saw the deceased being assaulted by four individuals including the accused, whom she identified as she was once in a relationship with him; she saw the accused slap the deceased who then fell to the ground), Richard Majome (the Investigating Officer), and Tafadzwa Paundi (who was called by Noleen Goro to assist the deceased after the assault and found him lying on the ground with blood at the scene). At the close of the State's case, the defence applied for discharge under section 198(3) of the Criminal Procedure and Evidence Act.

• Whether at the close of the State's case there was evidence that the accused committed the offence of murder as charged
• Whether the evidence led by the State was so manifestly unreliable that no reasonable court could safely act on it
• Whether a prima facie case had been established requiring the accused to answer
• What test applies for discharge at the close of the State's case under section 198(3) of the Criminal Procedure and Evidence Act

The application for discharge at the close of the State's case was refused. The matter would proceed to the defence case.

At the close of the State's case under section 198(3) of the Criminal Procedure and Evidence Act, a court shall discharge an accused only if: (1) there is no evidence to prove an essential element of the offence; (2) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (3) the evidence is so manifestly unreliable that no reasonable court could safely act on it. The State's burden at this stage is to establish a prima facie case on a balance of probabilities, not proof beyond reasonable doubt. A prima facie case exists where there is probable cause to put the accused on his defence and where the essential elements of the offence have been proved on a balance of probabilities. Once a prima facie case is established, the evidential burden shifts to the accused to adduce evidence to escape conviction, though the legal burden remains with the prosecution. The evaluation of evidence at this interlocutory stage is sui generis and different from the evaluation at the end of trial. Credibility plays only a very limited role and evidence should be ignored only if it is of such poor quality that no reasonable person could possibly accept it.

The court made several non-binding observations: (1) that calling a witness derogatory names (such as 'prostitute') does not detract from the substance of their testimony if it is otherwise consistent; (2) that witnesses who are self-confessed alcoholics can still give credible evidence if they were not intoxicated at the material time and their evidence is corroborated; (3) that a witness's reluctance to disclose the identity of assailants can be reasonable in circumstances where the witness had previously been assaulted by one of the accused persons; (4) that the common law principle requiring 'reasonable and probable' cause before initiating prosecution (from Beckenstrater v Rottcher) reflects the broader principle that persons should not be prosecuted merely in expectation that they might incriminate themselves; (5) that the court must be alive to the accused's constitutional rights including the right to freedom and the presumption of innocence when determining discharge applications; and (6) that the duty to prove guilt rests squarely on the State and the accused need not assist the State in any way in discharging this onus (citing S v Mathebula).

This case provides a comprehensive restatement of the principles governing applications for discharge at the close of the State's case in Zimbabwean criminal proceedings. It clarifies the distinction between the standard of proof required at the close of the State's case (prima facie case on balance of probabilities) versus the standard required for conviction (beyond reasonable doubt). The judgment emphasizes that discharge should only be granted in exceptional cases where evidence is manifestly unreliable, and that credibility assessment plays only a limited role at this interlocutory stage. The case reinforces the principle that an accused need not assist the State in proving its case, but also confirms that where there is minimum evidence upon which a conviction might be secured, the matter should proceed to allow the accused to answer the case. The judgment also addresses the treatment of witnesses with credibility challenges (such as alcoholism) and emphasizes that such challenges do not automatically render evidence inadmissible or unreliable if the evidence is otherwise consistent and corroborated.