Reid-Rowland Chapter 27

Constitutional provisions

Section 70(5) of the Constitution provides that a person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Appeal on merits

An appeal in a criminal case is a rehearing of the case on the merits and the appeal is usually heard on the basis of the evidence on which the decision appealed against was given. Only in very limited circumstances can new evidence be introduced in such an appeal.

Appeals from the magistrates court to the High Court

Nature of appeal

A person convicted in the High Court can appeal to the High Court

• against conviction for any offence,
• conviction and sentence,
• sentence; or
• any order of the court following the sentence.

[s 60(1)(a) MCA]

Leave to appeal

There is no requirement that an accused must obtain leave to appeal from the magistrate who convicted him or her before he or she can proceed to take the case on appeal.

If the Attorney-General is dissatisfied with a decision to discharge the accused at the end of the prosecution case, he may, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against the ruling. [s 198(4)(a) CPEA] See AG v Mzizi 1991 (2) ZLR 321 (S).

The Attorney-General may, with the leave of the Supreme Court, appeal against a judgment of the High Court if he is dissatisfied with that judgment:

• on a point of law; or
• because the High Court acquitted or quashed the conviction of the accused on a view of the facts that could not reasonably be entertained. (For this to be satisfied the verdict of innocence must be an unreasonable and perverse inference on the basis of the primary facts.) See AG v Paweni Trade Corporation (Pvt) Ltd 1990 (1) ZLR 24 (S)

[s 61 MCA]

The Attorney-General may, with the leave of a judge of the Supreme Court, appeal against a sentence imposed by the High Court, if he considers that the sentence was inadequate either:

• in the light of the findings of the court and the nature of the charge; or
• because the sentence was based on findings of fact for which there was no evidence or on a view of the facts which could not reasonably be entertained.

     [s 62(1)(b) MCA]

Magistrate’s response to noting of appeal

Within seven days of the noting of an appeal by a legally represented person the trial magistrate must, insofar as this may be necessary having regard to the judgment already filed, deliver to the clerk of court a written statement setting out the facts he or she found to be proved and his or her reasons for judgment and sentence and dealing with the grounds on which the appeal is based: Rule 23 of Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979 [SI 504 of 1979].

Within four days of the noting of an appeal by a person who is not legally represented, the magistrate may deliver to the clerk of court a statement containing any comments which he or she may wish to make on the grounds of Appeal: Rule 28 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979.

The magistrate’s response to the noting of the appeal enables the appellant to amend his grounds of appeal if he wishes to do so.

Where a notice of appeal contains allegations about the conduct of a case, the magistrate has a duty to comment on the allegations. This is why the notice of appeal is served on the magistrate: Chikafa S-162-88.

In Chari 1989 (1) ZLR 231 (S) a magistrate had failed to comment on a notice of appeal which correctly alleged that he had misdirected himself by declaring a witness to be hostile without following the correct procedure. Held that the magistrate had a duty to assist the appeal court by commenting on the allegation concerning his misdirection and he had failed in this duty.

In Gujral HH-73-90, a regional magistrate had delayed commenting on the appellant’s notice of appeal until after the record had been transcribed, which was done eight months after the notice had been lodged. The judge pointed out that it was the magistrate’s duty to ensure that his or her reply to the notice was given expeditiously. He said that arrangements must be made for magistrates to give their responses to notices as soon as possible after the notices are filed and not many months later when records are transcribed.

In a number of cases in the Supreme Court, it has been stressed that if the certified record is inadequate, because, for instance, it does not indicate what facts were found by the trial court or no reasons for the decision are given, the appeal court may have to set aside the conviction because it will not be possible for the court to be satisfied that the conviction was warranted: Makawa & Anor S-46-91; Marevesa S-108-91.

Where the appeal to the High Court involves a question of law only, a judge of the High Court may request the magistrate to state the question of law, together with all the circumstances under which the question arose. In this instance, a full copy of the record does not have to be prepared. All that is necessary are the particulars of the trial, the notice of the appeal, the stated case and such other documents as the judge directs. [s 37 HCA]

Appeals from High Court to Supreme Court

See Reid Rowland Chapter 27.

Nature of appeal

There are several types of appeal:

• a person convicted in the High Court can appeal to the Supreme Court against conviction, conviction and sentence, or sentence;
• a person convicted in the magistrates court who has appealed unsuccessfully to the High Court against conviction, sentence or conviction and sentence can appeal further to the Supreme Court;
• a person dissatisfied with the judgment of the High Court on review (other than a review in terms of s 57 MCA) can appeal against the judgment to the Supreme Court.

Appeal as of right

There is an unrestricted right of appeal if the appeal

• is on a point of law only [s 44(2)(a) HCA];
• is against conviction if a sentence of death has been imposed [s 44(2)(c) MCA];
• is against sentence if a sentence of death has been imposed [s 44(2)(c) MCA];
• if the sentence was fixed by law and the appeal is on the ground that the sentence passed was not the sentence fixed by law. [s 44(2)(d) MCA]. This allows for an appeal against an incompetent sentence e.g. where a sentence of imprisonment is imposed where only a fine was allowed or where the sentence is in excess of the court’s jurisdiction or above the maximum provided.

Appeal with leave of court

Leave to appeal is necessary for any appeal to the Supreme Court

• where the ground of appeal involves a question of fact only or a question of mixed law and fact. The ground of appeal is that there was no evidence, or insufficient evidence, to justify the conviction will be treated as an appeal involving a question of fact alone [s 44(3) HCA].
• where the appeal against sentence involves grounds other than those referred to above in respect of which no leave to appeal is required [s 44(2)(e) HCA].
• where the appeal is against an interlocutory order or given an interlocutory judgment in relation to criminal proceedings in the High Court. (An interlocutory order or judgment is one where the decision does not finally decide any issue between the parties, such as a ruling on jurisdiction, or on the admissibility of evidence.) [s 44(5) HCA]

When application for leave to be made

The application for leave to appeal should be made orally to the trial judge immediately after sentence has been passed. The applicant’s grounds for appeal should be recorded as part of the record.

If an oral application is not made immediately, a written application may, in special circumstances, be filed with the registrar within twelve days of the date of the sentence. The application must state why an oral application was not made, the proposed grounds of appeal and the grounds on which it is contended that leave to appeal should be granted. [r 263 High Court Rules.] One situation where special circumstances would be present is there the judgment was very lengthy and complex and counsel could not have been expected immediately to have dealt with the many issues raised in the judgment. In such an instance counsel should intimate to the court that a written application of appeal with be submitted later.

A copy of the written application must be served on the Attorney-General immediately after it is filed with the registrar. Within two days of service on him, the Attorney-General may file written submissions with the registrar. The registrar will then place before the presiding judge the application together with any submissions from the Attorney-General. The judge may require oral argument on any particular point or points raised. The judge may hear such argument in chambers or in open court. The judge may grant or refuse the application.

If a High Court judge refuses to grant leave, an application can be made to a judge of the Supreme Court for leave to appeal. This application must be made within ten days of the date when leave to appeal was refused, or within fifteen days of conviction, whichever is the later date. [r 3 &19 Supreme Court Rules.]

Basis for decision on whether to grant leave

The decision as to whether or not to grant leave to appeal depends on the prospects of the appeal succeeding. There must be a reasonable prospect of success. It is not enough that the case is merely an arguable one.

An application for leave to appeal against sentence should be dealt with more liberally as sentencing is a difficult task and there is usually room for a difference of opinion on the appropriate sentence, particularly where the circumstances are unusual and without precedent. See McGown 1995 (2) ZLR 81 (S).

Appeals by Attorney-General

If the Attorney-General is dissatisfied with a decision to discharge the accused at the end of the prosecution case, he may, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against the ruling. [s 198(4)(a) CPEA]. See AG v Mzizi 1991 (2) ZLR 321 (S).

The Attorney-General may, with the leave of the Supreme Court, appeal against a judgment of the High Court if he is dissatisfied with that judgment:

• on a point of law; or
• because the High Court acquitted or quashed the conviction of the accused on a view of the facts that could not reasonably be entertained. (For this to be satisfied the the verdict of innocence must be an unreasonable and perverse inference on the basis of the primary facts.) See AG v Paweni Trade Corporation (Pvt) Ltd 1990 (1) ZLR 24 (S)

[s 44(6) HCA].

The Attorney-General may, with the leave of a judge of the Supreme Court, appeal against a sentence imposed by the High Court, if he considers that the sentence was inadequate either:

• in the light of the findings of the court and the nature of the charge; or
• because the sentence was based on findings of fact for which there was no evidence or on a view of the facts which could not reasonably be entertained.

     [s 44(7)(b) HCA].

Requirement for clear and specific grounds of appeal

Appeal against conviction

      Weight of evidence argument

The appellant cannot simply make a general statement that the conviction is against the weight of evidence or the evidence does not support the conviction. The appellant must set out in more detail the basis for this assertion. He must say whether the attack is based on the quality or quantity of prosecution evidence or both.

      Errors of law

Again it is not enough to make a general statement that the conviction is wrong in law, or the trial court made a mistake of law. The appellant must set out what error of law was made.

      Mistake on the facts

The appellant must set out what mistake was made such as that the court erred in accepting the evidence of a particular person or in regarding that evidence as sufficient to prove that offence. If, for instance the ground is that the court erred in accepting the complainant’s evidence, the appellant would have to say why the court erred. For example, the evidence should not have been accepted because of improbabilities or contradictions in the evidence or its incompatibility with the evidence of other witnesses.

Appeal against sentence

The appellant must say what specifically he is alleging that court did wrong such as what error of law it made or that it took into account a wrong factor or failed to take into account a salient factor.

However, the appellant may simply allege that the sentence was manifestly excessive although it would be best for the legal practitioner to spell out on what basis this contention is made.

Power of appeal court to call for evidence or remit for further evidence

When the High Court and Supreme Court hears criminal appeals, they have to power to call evidence or remit the cases to the trial court for futher evidence. See s 41 HCA and s 17 SCA. However, the appeal court will exercise this power sparingly. They will only do so where the circumstances are exceptional and such that a grave miscarriage of justice might result if this power is not used.

The powers of an appeal court to call evidence are these:

• it may order the production of any document, exhibit or other thing connected with the proceedings;
• it may order any witness who would have been compellable at the trial (whether or not he or she was called at the trial) to give evidence before it. Alternatively, it may order that the witness be examined before any judge, or any other officer of the court, a justice of the peace or any other person. [The procedure for this is set out in Order 46 of the High Court Rules];
• it may receive evidence, if tendered, of any witness, including the appellant and, on special application, the appellant’s spouse, if such an application would have been necessary at the trial;
• having set aside the conviction, the court may remit the case to the trial court for the leading of further evidence.

Where one of the parties requests that the court to call evidence or remit the matter for further evidence, the party must indicate the nature of the evidence proposed to be led and must state the reasons for the failure to lead the evidence at the proper time: Ngombo 1964 RLR 232 (A) The party must show that the evidence could not have been produced at the trial: Ndlovu 1983 (2) ZLR 263 (S)  and give a reasonable explanation for the failure to lead it: Bira 1971 (1) RLR 263 (A)

In Chawira 2011 (2) ZLR 210 (H) the court pointed out that is not proper for an appeal court to refer a criminal case to the trial court fpr trial de novo where the evidence led in the first trial was not such as would sustain a conviction.