S v Mawadze and 2 Others (675 of 2022) [2022] ZWHHC 675 (29 September 2022)

1 HH 675-22 CASE NO. CRB 64/22 THE STATE versus MUNYARADZI MAWADZE and ELVIN DONGO SAUNGWEME and DELLION DAVID BALANI HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE, 27 & 29 September 2022 ASSESSORS: 1. Mr Mhandu 2. Mr Shenje Application for disclosure T Mukuze, for the State T Mpofu, for the 1st accused B Maruva, for the 2nd and 3rd accused DUBE-BANDA J: [1] This is an application by the defence team, requesting the disclosure of statements of witnesses and some other evidential material in the possession of the State. This application is anchored on the accused person’s right to a fair trial. Mr Mpofu, counsel for the first accused, motivated the application. Mr Maruva, counsel for the second and third accused persons associated with the application. The accused persons request to be furnished with the statement of the doctor who examined the remains of the deceased, statement of five potential witnesses, namely Gay Moyo; Babra Chirenda; Admore Maforo; Casper Makenzie; Chitsone and Chihnamo, copies of the post mortem report, Forensic DNA Test Certificate and police diary log book entries listed in the summary of the state, Kitchen knife, cream sneakers, t-shirt and jeans, photographs taken during indications and two video clips; one taken during indications and the other taken during the recording of warned and cautioned statements. [2] The State is opposed to the request for a disclosure. Mr Mukuze counsel for the State submitted that the State will provide what is stated in the summary of the State case and no HH 675-22 CASE NO. CRB 64/22 more. Counsel submitted further that anything extra is not subject of the trial and therefore shall not be disclosed to the defence. [3] Section 69(1) of the Constitution of Zimbabwe (Amendment No. 20) Act, 2013 means that the entire process of bringing an accused person to trial and the trial itself needs to be tested against the standard of a fair trial. At the heart of the right to a fair criminal trial and what infuses its purpose is that justice must be done and must also be seen to be done. Trial fairness is not confined to the position of the accused, but extends to society as a whole, precisely because society has a real interest in the outcome of a criminal trial. In any democratic criminal justice system, there is a tension between, on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the pale. But none of this means sympathy for crime and its perpetrators. What the Constitution demand is that the accused be given a fair trial. See: Key v Attorney-General, Cape Provincial Division and Another 1996 (4) SA 187 (CC) at 195 G – 196 D. [4] In Shabalala and Others v Attorney-General, Transvaal, and Another 1996 (1) SA 725 (CC) the Constitutional Court of South Africa held that the "blanket docket privilege" expressed by the rule in R v Steyn 1954 (1) SA 324 (A) was inconsistent with the Constitution to the extent to which it protected from disclosure all the documents in a police docket, in all circumstances, regardless as to whether or not such disclosure is justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial. [5] In this jurisdiction the "blanket docket privilege" was discarded in S v Sithole 1996 (2) ZLR 575 (H). In Namibia it was in the case of S v Scholtz 1998 NR 2007. Therefore the "blanket docket privilege" as enunciated in R v Steyn 1954 (1) SA 324 (A) is no longer part of our law. [6] In Shabalala (supra) it was held further that ordinarily the right to a fair trial would include access to the statements of witnesses (whether or not the State intends to call such witnesses) and such of the contents of a police docket as are relevant in order to enable an accused person properly to exercise that right, but the prosecution may, in a particular case, be able to justify the denial of such access on the grounds that it is not justified for the purposes of a fair trial. However, this will have to be decided on a case by case basis. [7] In an application for the disclosure of a statement by a witness, courts must consider competing interest i.e. the right of an accused to the contents of such a statement in order to afford such an accused person a fair trial and the interests of the State to ensure that the administration of justice is not jeopardized in this process. An accused has, in principle, a right HH 675-22 CASE NO. CRB 64/22 of access to all witnesses’ statements in the police docket and other documents in the docket such as expert and technical reports, for example, which might also be important for an accused to properly “adduce and challenge evidence” for the purposes of ensuring a fair trial. [8] In S v Chibaya HH 4/07 the court held thus: An accused person facing a criminal charge is entitled to a fair trial by independent and impartial court established by law. This right is enshrined in our Constitution. It is also trite that a prosecutor tasked with the prosecution of a criminal offence owes a duty to the court to conduct the trial in a manner which embraces the concept of providing a fair trial to the accused person. This duty includes the duty to disclose to the court any facts or documents that are in favour of the accused person. In situations where a witness has made statements which are contradictory or are inconsistent with the evidence presented to court, it is incumbent upon the representative of the State to make known these inconsistencies or furnish the defence with the statements concerned. (See R v Tapera 1964 RLR 197). Our courts have now gone further in the duty to disclose. In S v Sithole DEVITTIE J held that unless the State was able to justify non-disclosure of witnesses’ statements on grounds of public interest or some other legitimate basis, the accused ought to be provided with copies of the statements he has requested. Thus the accused’s entitlement to information contained in the docket has been expanded subject to certain limitations. The duty to disclose ought not to depend upon a request by the accused but must be premised by considerations of affording an accused person a fair trial unless non- disclosure is justified or can be justified. (my emphasis). [9] In S v Sithole 1996 (2) ZLR 575 (H) the court concluded that we ought to adopt a position that entitles an accused person who is indicted for trial to receive copies of witness statements subject to certain limitations. The jurisprudence shows that the State is entitled to resist a claim by the accused for access to any particular document in the police docket on the grounds that such access is not justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial or on the ground that it has reason to believe that there is a reasonable risk that access to the relevant document would lead to the disclosure of the identity of an informer or State secrets or on the grounds that there was a reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice. [10] Even where the State has satisfied the court that the denial of access to the relevant documents is justified it does not necessarily follow that access must be denied to the accused. The court will still retain a discretion. See: Shabalala and Others v Attorney-General, Transvaal, and Another 1996 (1) SA 725 (CC). [11] If the State is unable to justify its opposition to access of the relevant information access must be permitted. I now have to decide whether on the facts of this case, the State has advanced valid reasons to justify non-disclosure. HH 675-22 CASE NO. CRB 64/22 [12] The Namibian Supreme Court in an appeal hearing considered the issue of the disclosure of statements and its relation to the notion of a fair trial in S v Scholtz 1998 NR 2007 and in the course of its judgment referred to Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SA 761 (CC). At 227 J – 228 C the Court held that the prosecution must prove on a balance of probabilities that disclosure was not justified for the purposes of enabling the accused to properly exercise his or her right to a fair trial or some other basis recognizable at law. [13] My understanding of the authorities is that in applications for disclosure of statements of witnesses, an accused person is entitled to access to such statements as part of his fundamental right to a fair trial, and where the State opposes disclosure of such statements the State is obliged to prove on a balance of probabilities that the justification to deny the accused such requested disclosure. Proof on a balance of probabilities as a matter of law can only refer to evidence presented and not to the submissions by counsel. It places a burden on the State to lead evidence to prove that the restriction on the right of access to the statement is reasonable and justifiable. See S v Sithole 1996(2) ZLR 575 (H) where it was held that the State may decline the request on public interest grounds and it will be for the court to determine whether the State has discharged the onus of establishing that disclosure would not be in the public interest. It is trite that an onus may only be discharged by adducing evidence. [14] Therefore in a request for a disclosure there is an onus on the State to lead evidence to prove that the restriction on the right of access to the statement is reasonable and justifiable. Without evidence the State cannot even begin to resist the request for a disclosure. [15] State counsel submitted that the prosecution will disclose that which is stated in the summary of the State case and no more. Anything extra is not subject of this trial. Counsel indicated that the prosecution is in possession of the photographs sought to be disclosed by the defence, the statement of the doctor who examined the remains of the deceased, and the five statements referred to by Mr Mpofu. Regarding the two video clips State counsel with some measure of reluctance agreed that they are in the possession of the prosecution. It was argued that the State does not need them in this trial. [16] The prosecution is attempting to resist this application on the basis that some of the items sought to be disclosed are not subject to this trial. This argument is unsustainable. To show that this argument is without merit I turn to consider judgments from comparable jurisdictions where an accused’s right to a fair trial is guaranteed. In the Canadian case of R v Stinchcombe (1992) 68 CCC (3d) 1 (SCC) (18 CRR (2d) 210) which was cited with approval HH 675-22 CASE NO. CRB 64/22 and applied in Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SA 761 (CC) it was held that that an accused’s right to make full answer and defence, which is one of the pillars of criminal justice, requires full disclosure by the Crown of all material it proposes to use at the trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it. Again, in R v Carambetsos (2004) 117 CRR (2d) 1 (SCC) the Supreme Court of Canada re-emphasised that the purpose of a prosecution is not to obtain a conviction but rather to lay before a court what the Crown considers to be credible evidence relevant to the charged offence. This casts an obligation on the police and the Crown to make full disclosure subject to the legitimate and lawful fears of the State. See: Crossberg v S [2008] 3 AII SA 329 (SCA). My view is that this court must give effect to the principles of a fair trial and the values inherent in that concept in line with developments in other democratic countries where an accused’s right to a fair trial is guaranteed. [17] The tone of Mr Makuze’s argument was that the request for disclosure was not made timeously. The answer to this argument is that the duty to disclose ought not to depend upon a request by the accused but must be premised by considerations of affording an accused person a fair trial unless non-disclosure is justified or can be justified. Therefore, the argument that the request was not made timeously is of no moment. See: S v Chibaya (supra). [18] State Counsel agreed that the prosecution will disclose that which is stated in the summary of the State case. This narrows the ambit of the dispute. Therefore, the statement of the doctor who examined the remains of the deceased, the post mortem report, Forensic DNA Test Certificate, Kitchen knife, cream sneakers, t-shirt, jeans and police diary log book entries must be disclosed to the defence without much ado. These are listed in the summary of the State case. In contention is the refusal to disclose warned and cautioned statements, five witness statements, two video clips and photographs. In not so many words State counsel agreed that the prosecution was in possession the five witness statements, two video clips and the photographs requested by the defence. [19] Mr Mpofu submitted that the five statements in the possession of the prosecution for which disclosure is contested are assumed to be exculpatory. There is no evidence that they are exculpatory. All I can say in this regard is that as a rule an accused is entitled to documents which are exculpatory or which are prima facie likely to be helpful to the defence unless, in very rare cases, the State is able to justify the refusal. See: Shabalala and Others v Attorney- General, Transvaal, and Another 1996 (1) SA 725 (CC); Steyler N. Constitutional Criminal HH 675-22 CASE NO. CRB 64/22 Procedure (LexisNexis 1996) 240-241. See also Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S) regarding the duties of a prosecutor. [20] There is no evidence before this Court to justify a denial of disclosure of the warned and cautioned statements, the five witness statements, two video clips and the photographs sought by the defence. Such disclosure is justified for the purposes of enabling the accused persons to properly exercise their right to a fair trial, i.e. to be fully informed of the case they have to meet and adequately prepare their defences. [21] For the purposes of completeness I mention that even in his submissions State counsel did not advance valid reasons to justify the limitation of a full disclosure. In the circumstances the application must succeed. In the result, I accordingly order as follows: i. That the State shall forthwith provide the accused persons with copies of the post mortem report, Forensic DNA Test Certificate and police diary log book entries mentioned in the summary of the State case, and the witness statement of the doctor who examined the remains of the deceased. ii. That the State shall forthwith permit the accused persons to view the Kitchen knife, cream sneakers and t-shirt and jeans mentioned in the outline of the State case. iii. That the State shall forthwith provide the accused persons with copies of the two video clips i.e. one recorded during indications and the other during the recording of warned and cautioned statements and photographs taken during indications (at the cost of the defence). iv. That the State shall forthwith provide the accused persons with copy of the first accused warned and cautioned statement to the second and third accused. And also to provide a copies of the warned and cautioned statements of the second and third accused to the first accused. v. That the State shall forthwith provide the accused persons with copies of the witness statements of the following: Gay Moyo; Babra Chirenda; Admore Maforo; Casper Makenzie; Chitsone and Chinhamo. National Prosecuting Authority, State’s legal practitioners Dube, Manikai & Hwach, first accused’s legal practitioners Zuze Law Chambers, second and third accused’s legal practitioners