When to request a discharge: Section 174 explained
After the state has closed their case in a criminal trial, without compelling evidence, there is an option to bring the proceedings to an abrupt halt.
MBOMBELA – An accused may request the magistrate to be discharged, in terms of Section 174 of the Criminal Procedure Act 51 of 1977, (CPA), at any trial, if the court is of the opinion that there is no evidence the accused committed the offence referred to on the charge sheet.
The magistrate must decide if there is no evidence upon which a reasonable man acting carefully may be convicted. He will also consider if there is a possibility that evidence given by the defence later on might supplement the state’s case.
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Whereas the decision to refuse a discharge is solely within the discretion of the presiding officer and may not be questioned on appeal, the decision to grant a discharge at the end of the state’s case may be appealed against by the Director of Public Prosecutions, in terms of Section 310 of the CPA.
An accused aggrieved by the refusal of an application for discharge at the close of the State’s case has no grounds for the review thereof, unless there is proof of an irregularity in the conduct of the trial.
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The option of applying for a discharge at the close of the prosecution’s case must be explained to an accused when he is unrepresented and the evidence against him is weak.
Where a case has not been made out because the state has omitted to prove an element of the offence committed, or because of an oversight by an inexperienced prosecutor, and the omission could be rectified by the court recalling a witness and putting a single question to him, it is improper to discharge the accused.
Once the state has lead evidence, the court may no longer consider discharge, nor even entertain such an application.
