Arraignment

Arraignment is the putting of charges to the accused person so that he can plead to them.  If two or more accused are being tried together, each one must be called upon personally to plead to the charges.

It is not necessary for the charge to be read to the accused if the judge or magistrate is satisfied that the accused has read it and understands it.  Nor need the charge be read verbatim to the accused, so long as the judge or magistrate satisfies himself that the accused knows exactly what he is required to plead to.

The accused must make his plea freely and voluntarily and without having been influenced to do so by assaults or threats of violence.  If the accused pleads guilty because he has been threatened with a more severe sentence should he plead not guilty, it is not a proper plea.

When a charge is put to the accused, he is required to plead, or answer, to it “instantly”.  He must plead to it personally, and his legal practitioner should not tender a plea on his behalf unless it is confirmed by the accused.  If the accused is a company or other corporate body, the director or employee representing the company or corporate body will plead on the accused’s behalf — though a plea of guilty will not be valid unless the company or corporate body has authorised it.

If the accused person refuses to plead at all, a plea of not guilty may be entered.

Objections to charge

The accused may refuse to plead to a charge on the ground that he has not been served with a copy of the indictment or summons.  A conviction will be set aside if the accused is arraigned on a serious charge without being given sufficient notice to prepare his defence or seek legal representation – though this will not apply if the trial is then adjourned to give the accused time to do so.

Exceptions and motions to quash

Objections to a charge (apart from the example noted above) take the form of exceptions or motions to quash.

An exception is an objection to the charge, usually on the ground that it discloses no crime.

A motion to quash is raised when the charge lacks particularity so as to prejudice or embarrass the accused in his defence.

Motions to quash are made only against indictments in the High Court;  all objections to a charge in a magistrates court are brought by way of exception.  An accused can except to the charge and plead to it at the same time, and in that event the court has a discretion whether to dispose of the exception before evidence is led or after.  But generally, objections to a charge or indictment must be taken before the accused person has pleaded, not afterwards, and if he has already pleaded, he cannot object to the charge and the trial must proceed — though he can raise the objection at the end of the trial as a reason for acquittal.

Notice to be given before objecting to charge, and for certain pleas

Before excepting to a charge or applying to have the charge quashed, and before tendering any plea other than guilty or not guilty, the accused must give reasonable notice to the Prosecutor-General or his representative, or to the public prosecutor if the trial is in a magistrates court.  The Prosecutor-General or the prosecutor may however waive notice, and the court may dispense with the requirement of notice on good cause shown.

Particular pleas

The various pleas that may be tendered by an accused person are set out in section 180(2) of the Criminal Procedure and Evidence Act.  They are as follows:

Not guilty

By pleading not guilty, an accused person is regarded as having demanded the trial of the questions involved, and that the prosecution should be put to the proof of its allegations against him.  Note that it is not necessarily a statement by the accused person that he did not commit the crime;  it is really a challenge to the prosecution to prove its case if it can.

Guilty

A plea of guilty to the charge is an admission of all the material facts stated in the charge.  After a plea of guilty there is no issue between him and the State.

The accused may, however, tender a plea of guilty to a lesser crime than the one charged:  for example, an accused charged with murder may tender a plea of guilty to culpable homicide.  The prosecutor (not the court) then has a discretion whether or not to accept the lesser plea.  The same applies where the accused pleads guilty to an alternative charge.  If the prosecutor accepts the plea it is not competent for the court to convict the accused of the more serious crime that was charged.  If, on the other hand, the prosecutor does not accept it, then a plea of not guilty is entered and the trial goes ahead as if the accused had pleaded not guilty — but the plea is regarded as an admission by the accused of the facts that go to make up the lesser crime.  For example, if the accused is charged with murder and tenders a plea to culpable homicide, which plea is not accepted by the prosecutor, then at the subsequent trial the accused will be regarded as having admitted that he unlawfully caused the death of the deceased person.

Note that if, after pleading not guilty, an accused person during the trial tenders a plea of guilty to a lesser crime the prosecutor cannot accept the plea except with the leave of the court since once he has pleaded the case is in the hands of the court.

Procedure on plea of guilty

High Court

In the High Court, it is competent for the court to convict an accused person on his plea of guilty without hearing any evidence.  This does not, however, apply to a charge of murder.  In such a case, a plea of not guilty is entered as a matter of course and the trial proceeds as if that had been the accused person’s plea, though any admission he may have made with his plea is taken into account.  Oral evidence must be led, and it is not sufficient for the trial to be based solely on admissions of fact.

Magistrates court

In a magistrates court, if the accused person pleads guilty to the crime charged, or if he pleads guilty to any other crime of which he could be convicted on the charge sheet and the prosecutor accepts the plea of guilty to that other crime, the procedure to be followed depends on whether the crime to which the accused has pleaded is a petty one or is more serious.  This procedure is set out in section 271(2) of the Criminal Procedure and Evidence Act.

Petty Crimes:  If the court considers that the crime merits nothing more than a fine of level 3, it may adopt the procedure set out in section 271(2)(a) of the Criminal Procedure and Evidence Act and without further ado convict the accused of the crime to which he has pleaded guilty and impose a fine of level 3 or less.  The court may also impose any additional punishment that is required by law — for example, a prohibition from driving, in the case of a driving crime, or forfeiture of an article used in the commission of the crime — but it may not impose a sentence of imprisonment, even if it is wholly suspended.

This procedure should be adopted only for minor crimes, and the prosecutor should assist the court in deciding whether the crime is a minor one.  If the prosecutor, in the light of the facts of the case, considers the crime is not minor, he should outline the facts and request the court to proceed in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act;  the court must accede to this request.  (Note, however, that the court is not obliged to follow the procedure under section 271(2)(a) merely because the prosecutor recommends it;  the discretion to do so is vested in the court, not the prosecutor.)

More serious crimes:  If the court considers the crime merits a more severe sentence, then the court must follow the procedure laid down in section 271(2)(b) of the Criminal Procedure and Evidence Act:

1.  Where the accused person is not legally represented:

• The magistrate must carefully explain the charge and the essential elements of the crime to the accused, and if the acts or omissions on which the charge is based are not readily apparent, the magistrate must get the prosecutor to state what they are.Failure to give this explanation will invalidate the conviction.

In particular, the magistrate should deal with the following aspects in his explanation:

• Specific intent, where the crime requires a specific intent.
• Knowledge, where the crime requires knowledge of a particular fact or circumstance (e.g. receiving stolen property knowing it to have been stolen).
• Realisation of real risk or possibility (constructive intention):it may be necessary to question the accused to establish whether he must have realised that there was a real risk or possibility that his conduct would have a particular result.
• Particulars of negligence:where the accused has pleaded guilty to a crime involving negligence, the particulars must be put to him.
• Possession:this is a difficult concept, because sometimes the crime requires more than mere detentio (i.e. physical possession).In such a case, the magistrate should explain what additional element (e.g. knowledge) is required.
• Unlawfulness:sometimes this concept needs to be explained, for example in cases of theft by finding, where the accused may have believed that the property he found was res derelicta and that he was entitled to keep it.In rape cases, the questioning must establish that the accused is admitting not merely sexual intercourse, but also that it was not consensual.If the statute under which the accused is charged specifies that the crime is committed if the act is done “without lawful excuse” or “without reasonable excuse”, the magistrate must ascertain that the accused admits that he had no such excuse.
• Special defences:if there are any special defences to a charge, these should be explained to the accused (e.g. it is a defence to the crime of sexual intercourse with a young person that the accused believed the young person was of or over the age of 16).
• Where the accused is liable to a mandatory minimum sentence unless special circumstances are shown, these should be pointed out to the accused and the meaning of “special circumstances” explained.
• Where there are competent verdicts on which the accused may be convicted, the court should advise the accused that he might be convicted of such a crime.

• The magistrate must record the explanation he gives the accused, together with any statement of acts or omissions given by the prosecutor.
• Having explained the charge and essential elements, the magistrate must ask the accused person if he understands the charge and the essential elements of the crime and if his plea of guilty is an admission of those elements and of the acts or omissions set out in the charge or stated by the prosecutor.
• The magistrate must record any reply the accused makes to the above enquiry.

Having done all that, the magistrate may convict the accused person on the strength of his plea of guilty.

2.  Where the accused person is legally represented:

If the accused person is represented by a legal practitioner, the magistrate must still satisfy himself that the accused understands the charge and essential elements, but may rely on a statement to that effect by the accused’s legal practitioner.

Evidence and conviction

The magistrate may call on the prosecutor to present evidence on any aspect of the charge, both in regard to conviction and sentence.  He may, for example, want to make sure before convicting the accused that the facts set out in the charge, and admitted by the accused, do not disclose an attempt rather than the substantive crime charged.

Having followed the above procedure, the magistrate is then entitled to convict the accused person of the crime to which he has pleaded.

If, however, the magistrate has any doubt that the accused person really is guilty of the crime to which he has pleaded, or is not satisfied that the accused has admitted all the essential elements of the crime or all the acts or omissions on which the charge is based, or if he is not satisfied that the accused has no valid defence to the charge, then in all those cases the magistrate must enter a plea of not guilty and require the prosecutor to proceed with the trial.  Any admissions made by the accused up to that point, however, may be used in evidence at the trial.

After conviction, the court and the prosecutor may question the accused with regard to sentence, whether or not the accused elects to give evidence.  There is no specific provision stating that his answers, or his failure to answer, may be used as evidence against him, but that is the implication of the provision.

Generally

An accused person is entitled to a fair trial, and the procedure laid down in section 271 of the Criminal Procedure and Evidence Act must be seen in that context:  a person’s trial cannot be said to have been fair if he did not fully understand the charge he was facing.  Hence, even in cases where section 271(2)(b) does not apply — i.e. petty cases and cases heard in the High Court — judicial officers must ensure that the accused person’s plea is understandingly made.

A note on plea bargaining

If an accused person is legally represented, he may plead guilty on the basis of facts agreed to by his lawyer and the prosecutor and recorded in a statement of agreed facts.  This will happen where, before the trial, the defence lawyer has negotiated the terms on which the accused is prepared to plead guilty.  The statement of agreed facts will set out facts which the accused and his lawyer hope the court will find mitigating and justifying a more lenient sentence.  Prosecutors should be careful not to agree to improbable facts or facts which are not justified by the evidence.

Where a plea of guilty has been negotiated in this way, the prosecutor or the defence lawyer will hand in the statement of agreed facts to the court after the accused has pleaded, and the judge or magistrate will impose sentence on the basis of those facts.  However, the statement does not and cannot bind the judge or magistrate to impose a particular sentence, so when negotiating the plea the prosecutor cannot guarantee the sentence that the accused will receive.

In other countries plea bargaining, as it is called, is more institutionalised and does involve the courts.  Plea bargaining began in the United States of America in the 1920s, when an increasing backlog of criminal cases made it imperative to find a way to deal with them quickly.  In Federal courts in the USA there are two types of plea bargain:  those that do not bind the court to impose any particular sentence (i.e. like the Zimbabwean system outlined above) and those that do bind the court.  The US Supreme Court ruled in 1970 that plea bargaining was constitutional so long as the incentives to plead guilty were not so large or coercive as to overrule accused persons’ ability to act freely, and so long as the system was not used in such a manner as to give rise to a significant number of innocent people pleading guilty.

Plea bargaining is now so widespread in the United States that in 1980 only 19 per cent of defendants (i.e. accused persons) were tried on pleas of not guilty;  now (2017) only 3 per cent are.

Plea bargaining has spread beyond the United States, and now some 66 countries round the world use it.

In South Africa plea bargaining is regulated by section 105A of the Criminal Procedure Act 1977 (No. 51 of 1977).  Under that section prosecutors can negotiate plea bargains only with accused persons who are legally represented.  They must also consult the police and, where it is reasonable to do so, allow victims or their representatives an opportunity to comment on the proposed terms of the bargain.  Where a plea bargain has been agreed on, the prosecutor must inform the court before the accused has pleaded that it has been entered into and, if the court is satisfied that it was properly negotiated, the plea bargain is disclosed to the court.  The court must then question the accused to make sure that he admits committing the crime and that he entered into the agreement freely and voluntarily, in his sound and sober senses and without undue influence.  Then, if the court is satisfied that the accused is indeed guilty of the crime and that any agreement as to sentence is just, the court will proceed to sentence the accused in accordance with the agreement.

Advantages and disadvantages of plea bargaining

Plea bargaining allows criminal cases to be disposed of efficiently and speedily by giving accused persons an incentive to plead guilty.  It may also afford them an opportunity to get out of prison quickly if they are in custody pending trial.

On the other hand, it can all too easily lead to innocent people being pressured into pleading guilty and serving sentences for crimes they did not commit.  This may happen through prosecutors charging accused persons with multiple counts of serious crimes, sometimes with little evidence to back them up, in order to frighten the accused into pleading guilty to a less serious crime.  In the USA, a study was conducted of 300 cases where accused persons had been convicted of serious crimes but later DNA evidence, not available at the time of their trials, showed that they were innocent.  Of those 300, just over 30 of the accused had pleaded guilty.  Another study showed that a quarter of persons convicted of murder but later cleared had falsely confessed to the crimes.

Autrefois Acquit or Autrefois Convict

The accused may plead that he has already been acquitted or convicted of the crime with which he is being charged;  such a plea is known respectively as autrefois acquit (previously acquitted) or autrefois convict (previously convicted).  This plea gives effect to the rule, stated in section 70(1)(m) of the Constitution, that no one should be tried twice for the same crime (nemo debet bis vexari pro una et eadem causa).  If the plea is successful, it effectively bars any further proceedings, so it must be adjudicated upon before the trial commences.

When the plea is raised, the court should determine the issues arising from it separately from the main issues at the trial, and should deliver a separate judgment on it.

For the plea to succeed, the accused must show that he was “in jeopardy” (i.e. in danger) at the previous trial of being convicted of the charge that he now faces, or a substantially similar charge, i.e. that he was previously tried, whether inside or outside Zimbabwe:

• on substantially the same charge;
• by a court of competent jurisdiction;and
• the conviction or acquittal was on the merits.

It is not enough for him to show that the charge in the previous trial was based on the same facts:  he must have been in jeopardy of being convicted of the charge which he now faces.  In all such cases, it is the substance and not the mere form of the charges that must be looked at:  the question is whether the charges are substantially the same.

Examples:

• Where a person is charged with murder and is acquitted of that charge, but is convicted of assault (a competent verdict on a charge of murder), he cannot subsequently be charged with culpable homicide in respect of the same victim.
• Where a person has been convicted or acquitted of attempted murder, on the other hand, he may be charged with murder or culpable homicide if his victim later dies as a result of the assault.

The requirement that the acquittal must have been on the merits means that the court, at the trial or on appeal, must have considered the merits of the case and not have acquitted the accused on a mere procedural technicality.  Hence, where an accused had been convicted of murder, but his conviction was overturned on appeal on a technicality — that a deputy sheriff had sat with the jury while they deliberated — it was held that he could subsequently be tried again for the same murder.  This was because the defect in the proceedings was so great as to render them a nullity ‒ no proper decision had been reached by the jury, so there had not been a conviction at all.  Hence the accused had not been in jeopardy.  On the other hand, where an interpreter who interpreted the evidence of three witnesses in a murder trial was not properly sworn, it was held that the defect was not so great as to nullify the trial so the accused could not be tried again for the same murder.  If a prosecutor withdraws a charge after the accused has pleaded not guilty, the accused’s resultant acquittal would be on the merits even if no evidence has been led, because the accused was in jeopardy of being convicted;  hence the accused could not be tried again on the same charge.  It may seem strange that a person can be regarded as having been acquitted on the merits if no evidence has been led, but as was explained in S v Mthetwa 1970 (2) SA 310 (N), once an accused person has pleaded he is entitled to an acquittal, and it would be illogical if he could plead autrefois acquit if he was acquitted on the ground of insufficiency of evidence, but could not plead it if he was acquitted because no evidence at all had been led.  On the other hand, if a prosecutor withdraws a charge before the accused has pleaded, the accused can be charged again with the same crime because until he has pleaded he is not in jeopardy of being convicted.

According to section 381 of the Criminal Procedure and Evidence Act, if a conviction is set aside on appeal or review on the ground that the indictment or charge sheet is invalid or defective, or that there were technical irregularities or defects, or that the proceedings were a nullity, proceedings may be brought again in respect of the same crime.  The same judicial officer must not, however, preside over the subsequent trial.

The onus of establishing that the earlier crime is the same or substantially similar to the crime with which the accused is currently charged, rests on the accused and must be done by producing the record of the previous trial, or a copy of the record, certified by the clerk or registrar of the court concerned, and by oral evidence that the accused is the same person as the accused in that trial.  In raising the plea, however, all the accused has to say is that he was previously convicted or acquitted of the crime;  only when he has raised the plea may he be required to establish the facts on which it is based by producing the record of the previous proceedings.  In practice, particularly where the accused is not legally represented, the prosecutor is called on to look into whether or not the accused was previously convicted or acquitted.

Absence of jurisdiction

The accused may plead that the court has no jurisdiction to try him, for example that the crime was committed outside the court’s area of jurisdiction or because the crime is not one which can be tried by the court.  Other examples would be a claim of diplomatic immunity, i.e. that the accused is protected by diplomatic immunity from being tried by the court, or a claim of parliamentary privilege, i.e. that the charge against the accused arises from something that was said in Parliament which is protected by privilege.

As with a plea of autrefois acquit/convict, once a plea to the jurisdiction has been made the court must proceed to try the issues arising from the plea.  The onus of showing that the court has jurisdiction rests with the prosecution.

If the accused does not raise the question of jurisdiction in a magistrates court, the fact that the court did not have territorial jurisdiction to try him does not affect the validity of the conviction.  Conversely, however, it is not altogether clear from section 164 of the Criminal Procedure and Evidence Act what happens if the accused successfully raises a plea to the jurisdiction of a magistrates court but does not request that he be tried by some proper court.

Presidential pardon

The accused may plead that he has been pardoned by the President for the crime charged.  The onus here is on the accused to prove the pardon.  Note, incidentally, that the effect of an amnesty is the same as that of a pardon:  an amnesty is a pardon granted simultaneously to a number of people.

Plea that accused was given immunity after giving evidence as accomplice

• Under section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] an accomplice can be compelled to give evidence in a criminal trial and answer incriminating questions.If he answers all questions put to him fully to the satisfaction of the court (i.e. if he answers the questions truthfully) the court will discharge him from liability to prosecution for the crime to which he was an accomplice.The immunity has the effect of a pardon.There are certain requirements to be fulfilled before they can be given this immunity:
  
  • The prosecutor must inform the court that the witness is, in his opinion, an accomplice;
  • The accomplice must fully and to the satisfaction of the court answer all lawful questions put to him.

This is not one of the pleas mentioned in section 180 of the Criminal Procedure and Evidence Act.

It should be pointed out, incidentally, that the evidence of unconvicted accomplices – i.e. accomplices who give evidence under section 267 – may not accorded much weight because of the suspicion that they are trying to exonerate themselves by putting all the blame on the accused persons against whom they are giving evidence.  If therefore an accomplice is willing to give evidence against his fellows, it may be better for the prosecutor to have the accomplice tried and convicted separately, on a plea of guilty, and once the accomplice has been sentenced and, probably, given a lenient sentence, to call him to give evidence against the others.

Permanent stay of prosecution

The accused may plead that a court has ordered a permanent stay of the prosecution in terms of section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07], or that he is entitled to such a stay on the ground of an unreasonable delay in bringing him to trial for the crime.  In an earlier lecture we dealt with what amounts to an unreasonable delay.

Absence of title by the prosecutor

The accused may plead that the prosecutor has no title to prosecute.  The most likely use of this plea is in a private prosecution, where the accused challenges the right of the private person to bring the prosecution, but it may also be raised if the prosecutor has not been authorised by the Prosecutor-General to prosecute within the province or regional division where the trial is taking place.

Lis pendens

This plea is not mentioned in section 180, but it is available to an accused person.  It is that a criminal case on the same charge is pending in another court.

[Truth of defamatory matter]

Section 183 of the Criminal Procedure and Evidence Act states that if a person charged with criminal defamation wants to plead justification (i.e. truth and public interest), he must specially plead that defence.  Since defamation is no longer a crime, section 183 falls away.

Combination of pleas

Any combination of pleas may be tendered, though a guilty plea may not be joined to any other plea.

Notice of pleas

If an accused person intends to tender a plea other than guilty or not guilty, he must give reasonable notice to the Prosecutor-General or his representative, if the trial is in the High Court, or to the public prosecutor, if the trial is in the magistrates court.  The Prosecutor-General’s representative or the public prosecutor may waive the requirement of notice, or the court may dispense with it on good cause shown.

Alteration of plea

After pleading guilty, an accused may apply, whether before or after conviction, for his plea to be altered to one of not guilty.  The accused need merely give a reasonable explanation for having pleaded guilty originally;  he need not prove the explanation, and the court must allow him to change the plea unless the court is satisfied beyond a reasonable doubt that the explanation is false.  If the application is granted, the court will require the prosecutor to proceed with the case, but any admissions made by the accused before the alteration of his plea will stand as evidence in the trial.

An accused person can at any time during the trial alter a plea of not guilty to one of guilty.  He may do this if he realises that his defence to the charge unlikely to succeed, and hopes to get the benefit of a lighter sentence by pleading guilty.

After sentence has been passed it is no longer possible for the trial court to alter an accused person’s plea because the court is now functus officio.  The accused’s only recourse is to take the matter up on appeal or review.

Accused entitled to verdict after plea

Once an accused person has been called upon to plead to a charge, he is entitled to demand that he be acquitted or found guilty by the judge or magistrate before whom he has pleaded.  There are exceptions, however:

• Where the accused has pleaded not guilty and no evidence has been led, the trial may be continued before another judge or magistrate.The same applies where the accused has pleaded guilty and no evidence has been led and no inquiry has been made in terms of section 271(2)(b) of the .
• Where the judge or magistrate recuses himself from the trial.
• Where a separation of trials takes place.
• Where, after evidence has been led, the judge or magistrate dies, retires, resigns or is dismissed.In the case of death or incapacity (other than temporary incapacity), the trial is a nullity and can be commenced afresh before another judicial officer.If a magistrate becomes ill and his incapacity is likely to last for a considerable time, the proceedings should be set aside on review so that they can be commenced afresh before another magistrate.In the event of retirement, resignation or dismissal the proceedings become abortive and lapse without their having to be set aside.
• Where the Prosecutor-General applies for a private prosecution to be stopped so that the State can prosecute the accused de novo.
• Where the accused is found to be mentally disordered.