Reid-Rowland 27-6 – 27-7
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.
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.
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]
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 Prosecutor-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 Prosecutor-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 Prosecutor-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]
Reid-Rowland 6-17 – 6-20
Third Schedule offences
Where a person has been convicted of a Third Schedule offence, a magistrate may only admit a person to bail or alter his bail conditions if the Prosecutor-General has given his consent: proviso (iii) to s 123(1) CPEA.
The specified offences in Part 1 of the Third Schedule are:
- murder where it was committed in certain specified circumstances such as where it was premeditated;
- rape or aggravated indecent assault where it was committed in certain specified circumstances such as multiple rape of a victim;
- robbery where it was committed in certain specified circumstances such as where firearms were used;
- assault or indecent assault of a child under 16 involving the infliction of grievous bodily harm;
- kidnapping or unlawful detention involving the infliction of grievous bodily harm ;
- contravening the following sections of CLCA:20 (treason); 21 (concealing treason); 22 (subverting constitutional government); 23 (insurgency, banditry, sabotage or terrorism);24 (recruiting or training insurgents, bandits, saboteurs or terrorists); 25 (training as insurgent, bandit, saboteur or terrorist);26 (supplying weapons to insurgents, bandits, saboteurs or terrorists);27 (possessing weapons for insurgency, banditry, sabotage or terrorism) or 29 (harbouring, concealing or failing to report insurgent, bandit, saboteur or terrorist);
- An offence in Part II of the Third Schedule where the accused has previously been convicted of any offence specified in the Third Schedule or has allegedly committed such offence whilst on bail in respect of an offence in the Third Schedule.
The offences specified in Part II to the Third Schedule are:
- murder in circumstances other than those specified in Part I;
- attempted murder involving the infliction of grievous bodily harm;
- malicious damage to property involving arson or conspiracy, incitement or attempt to commit this offence;
- theft of a motor vehicle or conspiracy, incitement or attempt to commit this offence;
- any offence relating to dealing in or smuggling of ammunition, firearms, explosives or armaments or the possession of an automatic or semi-automatic firearm, explosives or armaments or conspiracy, incitement or attempt to commit this offence;
- any offence where the Attorney-General has notified the magistrate of his intention to indict the case direct to the High Court.
Where a person who has been convicted of an offence, other than one of the specified ones, applies for bail, the magistrate who has convicted him has the discretion to grant bail pending the appeal. The criteria to be taken into account in making this decision have been explored in a number of cases. The main factors to weigh in the balance are the interrelated factors of the prospects on appeal and whether the granting of bail will jeopardise the interests of the administration of justice.
In Kilpin 1978 RLR 282 (A), the appeal court pointed out that the principles governing the granting of bail after conviction were different to those governing the granting of bail before conviction. Where the person has not yet been convicted he is still presumed innocent and the courts will lean in favour of granting him liberty before he is tried. On the other hand, where he has already been convicted, the presumption of innocence falls away. There are certain cases where bail pending appeal should not be granted such as where the person has been convicted of an offence which almost invariably attracts a lengthy prison term and there are no reasonable prospects of an appeal against the lengthy prison term succeeding to a material degree. The trial magistrate had thus been wrong to automatically extend bail granted before trial to the post-trial stage where the person had pleaded guilty to such an offence.
Where the evidence of guilt is overwhelming there are no reasonable prospects of a successful appeal against conviction, but if there is room for a difference of opinion regarding conviction there would be a reasonable prospect on appeal.
However in Williams 1980 ZLR 466 (A), the appeal court said that even after conviction the court should lean in favour of liberty if this would not endanger the interests of the administration of justice. The prospects of success on appeal must be balanced against the interests of the adminstration of justice. The less chance of success on appeal the greater the chance there was of the convicted person absconding. But it was putting it too highly to say that bail should only be granted where there was a reasonable prospect of the appeal succeeding. On the other hand, in serious cases even where there was a reasonable prospect of success on appeal bail should sometimes be refused, notwithstanding that there is little danger of the convicted person absconding. See also Benatar 1985 (2) ZLR 205 (H).
In deciding whether the administration of justice will be prejudiced if bail is granted the court should take into account the seriousness of the offence, the seriousness of the penalty imposed, whether the appeal is against conviction or only against sentence and the prospects of success on appeal. With a serious offence which normally attracts a substantial prison sentence there will be a pronounced risk that the convicted person will flee from justice if released, especially if he has no reasonable chance of successfully appealing against conviction. There will be a very great risk of flight if X is only appealing against sentence and the most he can hope for is that the prison sentence will be subject to some minor adjustment. Even where there is a reasonable prospect of success on appeal against such a conviction, the convicted person may not be inclined to take the chance of the appeal succeeding, but may take flight instead if he is released pending appeal. With less serious offences not attracting drastic penalties the position will be radically different.
In assessing the prospects of success on appeal, the magistrate is obviously placed in a somewhat difficult position as, to a certain extent, he is being asked to come to a decision on the reliability of his conviction and/or sentence. He must try to assess this as objectively as possible.
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 found to be proved and his 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].
The duties of the magistrate in relation to the noting of appeals is set out in Jenkins 1985 (2) ZLR 193 (S)
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 may wish to make on the grounds of Appeal: Rule 28 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979.
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. The magistrate must make a meaningful response to the notice of appeal.
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 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.
The magistrate should confine himself to factual observations when making his comments, Musakwa 1995 (1) ZLR 1 (S)