CRIMINAL LAW – DISCHARGE OF ACCUSED AT CLOSE OF STATE’S CASE IN TERMS OF S 174 OF CPA

CRIMINAL LAW – DISCHARGE OF ACCUSED AT CLOSE OF STATE’S CASE IN TERMS OF S 174 OF CPA

The accused was charged with one count of murder read with the provisions of the Domestic Violence Act and a count of Defeating or obstructing or attempting to defeat or obstruct the course of justice. The accused pleaded not guilty to all the charges preferred against him and offered no plea explanation. The state then led evidence of 11 state witnesses. At the close of the State’s case, the defence brought an application for a discharge of the accused, asserting that the state did not lead sufficient evidence upon which a reasonable court acting carefully, may convict the accused on the preferred charges, which was opposed by the State.

D USIKU considered the application and stated that:

Section 174 of the CPA provides that;

‘If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.’

In S v Nakale and others 2006 2 NR 455 (HC) the words “no evidence’’ were interpreted to mean no evidence upon which a reasonable court acting carefully may convict. That interpretation was further endorsed by the Supreme Court in S v Teek 2007 1 NR 127 (SC).

The court when considering an application for a discharge in terms of S 174, it must assess the evidence and determine whether there is no possibility of conviction without the accused testifying and providing incriminating evidence. At this stage the state is only required to establish a prima facie case against the accused on which a reasonable court, acting carefully, may convict.

The evidence was that the accused was placed on the crime scene through the evidence of an eye witness;  post-mortem examination conducted on the body of the decease indicated the cause of death to have been as a result of a penetrating stab wound to the left side of the chest; and an incident report was immediately made by an eye witness to the deceased’s family after the fact.

When considered in totality, the court was of the view that a reasonable court acting carefully may convict the accused on the charges preferred against him. In the result, the application for discharge in terms of section 174 of the Criminal Procedure Act, 51 of 1977 was dismissed.

S v Maasdorp NAHCMD 9 September 2022