Reid-Rowland 16-39 – 16-44
Constitutional provisions
Section 70(4) of the Constitution provides:
Any person who has been tried for an offence has the right on payment of a reasonable fee prescribed by law, to be given a copy of the record of the proceedings within a reasonable time after judgment is delivered in the trial.
Full record
Where there is no mechanical recorder for recording the evidence, the trial judge must keep a full handwritten record of the proceedings. He or she must make full, clear and accurate written notes of everything that is said and everything that happens during the hearing of the case which is of any relevance in relation to the outcome of the case and the sentence. See Ncube HB-112-2012
All applications made to court must be recorded, together with the reasons why these were made: Maniko & Ors HH-44-91. Evidence-in-chief can normally be paraphrased by the recording judge except for important aspects which must be fully recorded. All cross-examination must be taken down in question-and-answer form.
The keeping of a proper record is vitally important. Where there are substantial and material deficiencies in the transcript this will constitute a gross irregularity necessitating the quashing of the conviction as the absence of a proper record makes it impossible for a review or appeal court properly to assess the correctness or validity of the proceedings.
In Moyo & Ors HB-15-93, the court said that a record must be clear and intelligible. The handwriting should not be illegible and the judicial officer must not use obscure abbreviations. There is no excuse for not recording the questions and answers with sufficient clarity.
In Chizhanje HH-13 -2008 the court said it was the duty of the magistrate and the clerk of court to submit the record for review in an orderly fashion and the record must be properly secured
Records forwarded for review or scrutiny must be full and accurate. The blame for sending incomplete records for review or scrutiny lies entirely with the trial judge, not the clerk of court, because it is the former who certify that the records are complete. Before so certifying, it is incumbent on the trial judge to check that all documents used in the proceedings are included in the records.
See Davy 1988 (1) ZLR 386 (S); Ndebele 1988 (2) ZLR 249 (H); Ndlovu HB-98-89; Nyedziwa HB-33-90; Maniko & Anor HH-44-91.
The evidence must be recorded in such a way that the appeal or review court can understand it. When the witness says: “He or she then turned in this direction” and indicates the direction or “He or she was this height” and indicates the height, the judge must put a note in brackets “(Indicates left)” or “(Indicates a height of approximately two metres)”.
In Chidavaenzi HH-113-08 the appellant appeared before the magistrates court to answer to a charge of unlawfully conducting the business of selling goods without a valid shop licence in contravention of section 4 of the Shop Licenses Act. It was not clear on the record in what capacity she appeared before the trial court. While her name was typed on the charge sheet as the accused person, the trial magistrate endorsed the name “Karima Investments” above her name. A similar endorsement was made on the outline of the state case. The record was silent as to the import or purport of both endorsements. Further, the record indicated that she did not at any stage tender a plea to the charges. The proceedings started off with a statement that the facts and essential elements had been explained and were understood by the accused. Defence counsel then advised the court that at the time the charges allegedly arose, the accused was not operating the shop as it was closed. An exchange then followed between the prosecutor and defence counsel about the matter going to trial with the accused pleading to the charges. Immediately thereafter, the court recorded that the accused was guilty as pleaded (sic). The matter then proceeded to mitigation and sentence. The record did not indicate that at any stage during the proceedings, the charge was put to the accused and she pleaded to it as alleged.
She was duly convicted and sentenced to payment of a fine or, in default of payment, 30 days imprisonment. In addition, all the items listed in the state outline as the subject matter of the offence were declared forfeited to the State. From the nature of the sentence imposed by the lower court, it would appear that the court was sentencing the appellant in her personal capacity and not as representing Karima Investments since a company cannot be imprisoned in the event that it defaults on paying a fine. Aggrieved by the sentence, the appellant noted an appeal to this court.
The court held that magistrates’ courts are courts of record. This is specifically provided for in section 5(1) MCA which lays down that the record must be accessible to the public through the office of the clerk of court. There is thus a legal and professional duty on the part of magistrates to always keep full and comprehensive records of the proceedings before them. The record must ex facie, be able to inform the reader of what transpired in court without the aid of verbal explanations from the pressing officer. A failure to keep a proper record of any proceedings or any part thereof amount to gross irregularity cognizable under the court’s power of review as envisaged in provisions such as s 27 HCA. The need to do so is quite obvious. In the absence of such a record how is a review or appellate tribunal to assess the correctness and the validity of any proceedings placed before it for adjudication? The need to keep a full and comprehensive record also reduces arbitrariness on the part of the presiding officer as all questions by the court to the accused and the responses elicited by such questions are reduced to writing. It would take a criminal minded judicial officer to falsely record the questions he put to the accused and the answers elicited by such questions.
It is an error in a fundamental procedural regard not to record a plea from the accused. While the CPEA does not specifically provide for how a plea to a charge should be taken, as a matter of procedure, the accused person should personally plead to the charge. There is need for all trial judges the need to observe the practice of specifically asking the accused person to personally plead to each count in the indictment and not, as frequently happens, the legal practitioner tendering the plea on behalf of the accused. In casu, no plea was recorded from either the appellant or from her legal practitioner. It is not clear on the record whether this important procedural step was taken by the court. It further cannot be assumed that the accused pleaded guilty to the charges where the record is silent.. The rest of the proceedings that followed cannot be valid in the absence of a plea by the appellant. The failure by the trial court to record a plea from the accused person personally is such a gross irregularity as to vitiate the entire proceedings. It is deemed safer to set one possibly guilty person free than to condone a departure from practice that may set the precedent for the conviction of many innocent people.
Accordingly, the court quashed the conviction.
Arrangement of record
The record should be arranged in this sequence:
1. The judgment (verdict and sentence and reasons therefor) or, if there has been a guilty plea which was accepted, the reasons for the sentence.
2. Charge sheet or summons.
3. Details of prosecution allegation or agreed statement of facts.
4. Recorded evidence (numbered and in correct numerical sequence and stapled together).
5. Documentary exhibits, including the State and defence outlines or statement of facts.
6. Any document recording previous convictions or certifying the absence of previous convictions.
7. The warrant committing X to prison, if any.
All these papers must be secured together and placed in a case cover.
Right of person tried to obtain copy of record
Section 70(4) of the Constitution provides that any person who has been tried for an offence has the right, on payment of a reasonable fee prescribed by law, has the right to be given a copy of the record of the proceedings within a reasonable time after judgment is delivered in the trial.
Lost record
Although all possible care must be taken to ensure that records of cases do not go missing, from time to time records do get lost. The record may go missing prior to or subsequent to the reaching of verdict and the imposing of the sentence.
If the record goes missing whilst the trial is still taking place (i.e. before all the evidence has been heard and the judicial officer has arrived at his or her verdict), then X is entitled to have the case proceed from the point at which it left off. Thus with part-heard cases, the clerk of court under the direction and supervision of the presiding judicial officer, must reconstruct the record from the best secondary evidence. Affidavits should be taken from witnesses and those present.
Where X had pleaded guilty the case can then proceed on the basis of the restored record, provided there is no prejudice to X. If, however, he or she has pleaded not guilty the witnesses who have previously given evidence must be recalled in order to ascertain whether they agree that the version of their testimony in the reconstructed record is correct. X and the State should be permitted to cross-examine the witnesses relating to the correctness of the reconstructed record: Sibanda HH-80-91.
If the trial has been completed, the trial judge is functus officio (has finished dealing with the matter) and the clerk of court must, by affidavit, state that the record has been lost and proceed to reconstruct the record by obtaining affidavits from the judge, witnesses and others present as to the contents of the record. Both parties must be given an opportunity to peruse the reconstructed record and to give their versions. Thereafter the record will be sent for review or appeal: Sibanda HH-80-91.
In Ndlovu HH-149-13 the accused was a legal practitioner. One of his colleagues had represented a foreign national who was on bail on a criminal charge. One of the bail conditions was that this person should surrender his passport to the clerk of court. The accused’s colleague asked for an order that the foreign national’s passport should be returned to him so that certain immigration matters could be attended to, and undertook not to give the passport to the foreign national. After the court ruled that the passport could be returned, the accused signed for the passport, undertaking that he would only use it to sort out immigration formalities, and return it to the clerk of court. The foreign national did not return to court and left the country. The accused and his colleague were charged with defeating the course of justice and alternatively giving false information to the court. The accused was convicted but given bail pending appeal. The record was subsequently lost, and the matter was referred by the trial magistrate to the chief magistrate, who sent to matter to the High Court for review, with a request that the proceedings be set aside. The reviewing judges, having heard the parties to the matter, issued an order requiring the clerk of the trial court, with immediate effect, to cause the reconstruction of the record of proceedings. A declaration was received from the trial magistrate, the trial prosecutor and the accused’s counsel to the effect that reconstruction of the record of proceedings was impossible.
The court held that judges review proceedings to determine the result and not to rubber stamp decisions from administrative officers. The chief magistrate’s request would be ignored and the court would determine the matter as it deemed fit.
The procedure for reconstruction of a record is that the clerk of the court must by affidavit indicate that the record is irretrievably lost and should obtain from the presiding magistrate, witnesses and others present at the trial affidavits as to the contents of the record and thereafter he must give both parties an opportunity to peruse this so they may give their version as well. This reconstructed record from the best available secondary evidence must be sent for review. The procedure is not initiated by the officials who made the above mentioned declaration and reconstruction does not only depend on their inputs. The reviewing judge should be informed by the clerk of court about the result of the reconstruction, not by the declarants. The clerk of court should have obtained affidavits from them, the witnesses and others present at the trial. Their inputs should not have been sent directly to the reviewing judge but to the clerk of court, who could, if the result of his consultation with all he had to consult was in agreement with the view of the declarants, have deposed an affidavit to that effect addressed to the Registrar for onward transmission to the reviewing judges.
The trial magistrate should not have communicated directly with the prosecutor and defence counsel; he should have done so through the clerk of court. Such a direct communication was contrary to judicial ethics.
The evidence as to how the accused applied for the release of the passport, and signed for it, failed to return it and the absconding of his client should be in the court’s records. The immigration department should have evidence on whether there was anything the accused needed to sort out at their offices using the accused’s client’s passport, whether he attended at their offices for that purpose, and whether the client left the country using that passport. The simplicity of the evidence which should have been led at the trial whose record of proceedings has been lost has a strong bearing on the case with which such proceedings can be reconstructed. The institutional nature of the source of such evidence defeated the declarants’ declaration that exhibits have been irretrievably lost. That, and the trial magistrate’s use of an incorrect procedure to reconstruct the record, left no doubt that the record could be reconstructed. However, because the trial magistrate and his co-declarants had so compromised themselves that a reconstructed record in which they were participants could not be of any value at any legal proceedings, the court reluctantly had to accept the declarants’ averment that the record could no longer be reconstructed.
Tampering with record
Liver HH-196-92: When a magistrate was advised that she had passed an incompetent sentence, she tore up the original sheet and substituted a competent sentence. The trial court has no power to “correct” its decision like that; such tampering with a record as a criminal offence; the case could only be referred to the High Court for correction there. The amended sentence was set aside and a permissible sentence substituted.